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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 


HARRY  G  SADICOFF 


A  TREATISE 


ON 


Federal  Criminal  Law 

re 


S  OF  INDICTMENT 


AND 


WRIT  OF  ERROR 


AND 


THE  FEDERAL  PENAL  CODE 


BY 


WILLIAM  H.  ATWELL, 

Ex.  U.  8.  Attorney,  Dallas,  Texas. 

Southwestern    University,    1889. 
University  of  Texas,   1891. 


Third  Edition 


Columbia,  Missouri 
E,  W.   STEPHENS   PUBLISHING   COMPANY 

1922. 


Dedicated  to  that  splendid  character — my  friend — the 
Honorable  Edward  R.  Meek,  United  States  District  Judge 
for  the  Northern  District  of  Texas. 


T 
At  <v&  *t 


Copyright  1911 
William  H.  Atwell 


Copyright  1916 
William  H.  Atwell 


Copyright  1922 
William  H.  Atwell 


S487S2 


PREFACE  TO  FIRST  EDITION 


The  many  years  I  have  served  as  United  States  Attor- 
ney have  convinced  me  that  the  majority  of  the  bar  will 
welcome  a  sort  of  compendium  of  Federal  Law  and  Pro- 
cedure and  indictment  forms,  that  may  be  of  instant  as- 
sistance to  them,  when  called  into  a  criminal  case  in  the 
Federal  Court. 

No  especial  claim  of  originality  is  made  for  the  pages 
that  follow.  Keference  books,  annotations,  dictionaries, 
encyclopedias,  and  reports  of  the  Courts  have  been  fre- 
quently and  studiously  consulted.  A  great  portion  of 
the  work,  however,  has  been  taken  from  my  own  anno- 
tations, made  during  my  service  as  an  official. 

In  the  preparation  of  the  volume,  I  have  been  conscien- 
tiously aided  by  my  clerk  and  private  secretary,  Mr.  J. 
A.  Lantz. 

The  book  is  offered  with  the  prayer  that  the  labor  of 
some  fellow  attorney  may  be  somewhat  lightened. 

Yours  verv  earnestly, 

WILLIAM  H.  ATWELL. 
August  1,  1910. 

PREFACE  TO  SECOND  EDITION 


In  1910  the  first  edition  of  my  work  on  Federal  Crimi- 
nal Law  was  published.  It  was  generously  received  by 
the  profession.  Many  complimented  it — a  few  criticized 
it.  The  five  years  that  have  passed  since  then  have  been 
fat  with  decisions.  I  have  tried  to  cite,  and  believe  I 
have  cited,  in  the  present  volume,  all  of  these  new  de- 
cisions. I  have  also  added  another  chapter  on  Practice 
Suggestions. 

In  this  book  should  be  found,  if  not  all  of  the  decided 
law  with  reference  to  a  statute,  a  quick  index  to  where 

V 


vi  PREFACE. 

sucli  law  may  be  found,  and  this  is  often  all  the  busy, 
painstaking  lawyer  wants. 

WILLIAM  H.  ATWELL. 
Dallas,  Texas,  March  1,  1916. 

PREFACE  TO  THIRD  EDITION. 


Congresses  and  courts  have  been  working  so  rapidly 
since  the  publication  of  my  Second  Edition,  in  1916, 
that  this  Third  Edition  is  necessary. 

Regardless  of  political  opinions  it  may  be  conceded 
that  the  hegemony  of  the  Federal  Court  is  at  hand. 

That  those  who  enter  that  tribunal  may  find  some  as- 
sistance here  is  my  prayer. 

WILLIAM  H.  ATWELL. 
Dallas,  Texas,  April  1,  1922. 


ALPHABETICAL  TABLE   OF   CASES. 


EXPLANATION. 


(The  following  table  of  cases  shows  cases  cited  in  this  volume; 
if  a  case  is  cited  more  than  once  there  will  he  a  semi-colon  between  the 
first  and  second  citations.  The  letter  P  means  the  page  in  this  volume 
that  the  case  will  be  found;  thus,  Wetzel  v.  U.  S.,  233  F.  904,  p.  246, 
means  that  Wetzel  v.  U.  S.  shown  at  233  F.  page  904,  will  be  found  in 
Atwell's  Federal  Criminal  Law  at  page  246  of  this  volume.) 


Abbate  v.  U.  S.,  270  F.  735,  p.  508. 

Ackley  v.  U.  S.,  200  F.  218,  p.  175. 

Aczel  v.  U.  S.,  232  F.  652,  p.  44. 

Adams  Express  Co    v.  Key,  U.  S.  Sup.  Ct.,  May  13,  1907,  p.  574. 

Adams  v.   New  York,   192   U.  S.   575;    192  U.   S.    586;    192   U.   S.   585; 

Law  Ed.  p.  64;   65;   67. 
Adams  v.  U.  S.,  259  F.  214,  p.  248. 
Adler  v.  U.  S.,  182  F.  464,  p.  60;    81;    182  F.  464. 
Agnen  v.  U.  S.,  165  U.  S.  36,  p.  603;   42. 
Alerta  v.  Moran,  9  Cranch   359,  p.  420. 
Alexander  v.  U.  S.,  57  F.  830,  p.  133. 
Alexis  v.  U.  S.,  129  F.  60,  p.  163. 
Allen  v.  U.  S.,  115  F.  4,  194  F.  664,  p.  71;   286. 
Allis  v.  U.  S.,  155  U.  S.  117;   155  U.  S.  123;  p.  142;  92. 
Ammerman  v.  U.   S.,   185  F.   1;    216  F.  326;    185  Fed.   1;    267  F.   136, 

p.  283;    57;    72;    112. 
American  Express  Co.  v.  Iowa,  196  U.  S.  133,  p.  574. 
American  Lithographic  Co.  v.  Werckeister,  102,  21  U.  S.  603,  p.  14. 
American  School  v.  McAnnulty,  187  U.  S.,  104,  p.  198. 
American  Slate  Co.  v.  O'Halloran,  229  F.  77,  p.  141. 
American  Steel  Co.  v.  Davis,  261  F.  800,  p.  47. 
Amos  v.  U.  S.,  41  Sup.  Ct.  Rep.    266,  p.  6. 
Anderson  v.  Moyer,  193  F.  499,  p.  144. 
Anderson  v.   Patten,   247   F.   382,   p.   247. 
Anderson  v.  U.  S.,  170  U.  S.  510,  42  Law  Ed.  1126,  273  F.  21;  269  F.  65; 

260  F.  55,  p.  535;   44;   56;  36. 
Andrews  v.  U.  S.,  224  F.  418,  162  U.  S.  420,  p.  171;  418;  134;   234. 
Anduaga  v.  U.  S.,  254  F.  61,  p.  51. 
Angelus  v.  Sullivan,  246  F.  54,  p.  234. 
Anzine  v.  U.  S.,  260  F.  827,  p.  235. 
Apgar  v.  U.  S.,  255  F.  16,  p.  20. 
Appleby  v.  Chiss,  160  F.  984,  p.  202. 
Arver  v.  U.  S.,  245  U.  S.  366,  p.  234. 
Athanasaw  v.  U.  S.,  227  U.  S.  326,  p.  640. 
Atwell  v.  U.  S.,  162  F.  97,  p.  110. 
August  v.  U.  S.,  257  F.  388,  p.  75;  126. 
Ayala  v.  U.  S.,  268  F.  296,  p.  44. 


(vii) 


viii  Table  of  Cases. 


Babcock  v.  U.  S.,  34  F.  873,  p.  287. 

Badders  v.  U.  S.,  240  U.  S.  391,  p.  56;  200  U.  S.  Supt.  Ct.,  1916. 

Bachanan  v.  U.  S.,  233  F.  257,  p.  432. 

Back  v.  State,  62  Ala.  432,  p.  209. 

Baender  v.  U.  S.,  260  F.  832,  p.  262. 

Baer  v.  Rooks,  50  F.  898,  p.  90. 

Bailey  v.  State  of  Ala.,  219  U.  S.  219,  p.  522. 

Bailey  v.  U.  S.,  259  F.  88,  p.  573. 

Bain  v.  U.  S.,  262  F.  664,  p.  618;    69. 

Baird  v.  U.  S.,  196  F.  778,  p.  654. 

Balcom  v.  U.  S.,  259  F.  779,  p.  82. 

Baldwin  v.  U.  S.,  238  F.  794,  p.  509. 

Baldwin  v.  Frank,  120  U.  S.  678,  p.  439. 

Baldwin  v.  Pacific,  199  F.  291,  p.  125. 

Balke  v.  Moyer,  206  F.  559,  p.  99. 

Ball  v.  U.  S.,   163  U.   S.   663,   41     Law  Ed.   300,   147  F.   32,   162   U.    S. 

662,  136,  35  Law.  Ed.  384,  p.  533,  p.  103;    40;    100. 
Ballard  v.  U.  S.,  245  F.  837,  237;   p.  113,  p.  573. 
Ballew  v.  U.  S.,  160  U.  S.  195,  p.  99. 
Balliet  v.  U.  S.,  129  F.  689,  p.  19;   40. 
Ballman  v.  Fagin,  200  U.  S.  195,  p.  13. 
Bandy  v.  U.  S.,  245  F.  100,  p.  118. 
Bank  v.  British  N.  America,  91,  N.  Y.  110,  p.  592. 
Bank  of  U.  S.  v.  Moss.,  6  Howard,  38,  p.  99. 
Bank  v.  Whitman,  100  U.  S.  689;   94  U.  S.  343,  p.  592. 
Barber  v.  U.  S.,  35  F.  886,  p.  289. 
Barbot  v.  U.  S.,  273  F.  919,  p.  509. 
Bark  v.  Piatt,  172  F.  777,  p.  594. 
Bardick  v.  U.  S.,  236  U.  S.  79,  p.  651,  211  F.  493. 
Barnap  v.  U.  S.,  40  Sup.  Ct.  Rep.,  374,  p.  308. 
Barnes  v.  U.  S.,  166  F.  113,  p.  177. 
109  Barrels  of  Whiskey  v.  U.  S.,  94  U.  S.  86,  p.  578. 
Bartel  v.  U.  S.,  227  U.  S.  427,  p.  179. 
Bartlett  v.  U.   S.,  106   F.  885,  p.   19. 
Barton  v.  U.  S.,  202  U.  S.  344,  p.  220. 
Baskin  v.  U.  S.,  149  F.  740,  p.  284. 
Bassett  v.  U.  S.,  9  Wallace  38,  p.  97. 
Bates  v.  Breble,  151  U.  S.  149,  p.  246. 
Bates  v.  U.  S.,  269  F.  563,  p.  134. 

Battle  v.  U.  S.,  209  U.  S.  36,  52     Law  Ed.  671,  p.  530. 
Batts  v.  U.  S.,  273  F.  35,  p.  241. 
Bayland  v.  State,  69  Md.  170,  p.  209. 
Beavers  v.  Henkel,  194  U.  S.  87,  p.  28. 
Beavers  v.  Haubert,  198  U.  S.  86,  p.  19. 
Becharias  v.  U.  S.,  208  F.   143,  p.  376. 
Beckerman  v.  U.  S.,  267  F.  185,  p.  462. 
Belden  v.  U.  S.,  223  F.  726,  p.  735. 
Benbrook  v.  U.  S.,  186  F.  153,  p.  575. 
Eelfi  v.  U.  S.,  259  F.  822,  p.  235. 
Belknap  v.  U.  S.,  150  U.  S.  588,  p.  98. 
Bennett  v.  State,  225  S.  W.  375,  p.  76. 
Bennett  v.  U.  S.,  194  F.  630,  p.  639. 
Benson   v.  McMahon,  127  U.  S.   457,  p.  236. 
Benson  v.  U.  S.,  240  F.  413,  p.  45. 
Bentall  v.  U.  S.,  262  F.  744;  p.  242;  595. 
Berg  v.  Bas.  Co.  &  Harrison,  U.  S.  Supt.  Ct.,  Oct.  1916,  Mar.  16.  1917. 

p.  415. 


Table  of  Cases.  ix 


Bergen  v.  Shaw,  249  F.  466,  p.  82. 

Bergin  v.   State,   188  S.  W.   423,  p.  20. 

Bernard  v.  Lea,  210  F.   583,  p.   119. 

Bernstein  v.  U.  S.,  238  F.  923,  p.  365;  95. 

Berry  v.  Seawall,  65  F.  744,  p.  133. 

Berry  v.  U.  S.,  275  F.  680,  p.  8. 

Berryman  v.  U.  S.,  259  F.  200,  p.  475. 

Bese  v.  U.  S.,  144  F.  374,  p.  542. 

Betts  v.  U.  S.,  132  F.  228,  p.  197;   132  F.  240,  p.  57. 

Bettman  v.  U.  S.,  224  F.  819,  p.  201. 

Beyer  v.  U.  S.,  251  F.  40,  p.  636. 

Biggerstaff  v.  U.  S.,  260  F.  926,  p.  43;  635. 

Billingsly  v.  U.  S.,  178  F.  653,  p.  602. 

Billingsley  v.  U.  S.,  274  F.  86,  p.  241. 

Bingham  v.  Bradley,  241  U.  S.  511,  p.  129. 

Blackman  v.  U.  S.,  250  F.  449,  p.  95,  202  F.  98,  105,  p.  198. 

Blackstone  v.  U.  S.,  261  F.  150,  p.  635. 

Blake  v.  U.  S.,  71  F.  286,  p.  292. 

Blanc  v.  U.  S.,  258  F.  921,  p.  10. 

Blair  v.  U.  S.,  250  U.  S.  273,  p.  18;  233. 

Blanton  v.  U.  S.,  186  F.  965,  p.  199. 

Bliss  v.  U.  S.,  105  F.  508,  p.  256. 

Blisse  v.  U.  S.,  263  F.  961,  p.  126. 

Blitz  v.  U.  S.,  153  U.  S.  308,  p.  133. 

Blunt  v.  U.  S.,  255  F.  332,  p.  509. 

Bolland  v.  U.  S.,  238  F.  529,  p.  360. 

Bomharger  v.  U.  S.,  219  F.  841,  p.  176. 

Bonfoey  v.  U.  S.,  253  F.  802,  p.  199. 

Booners  v.  U.  S.,  257  F.  963,  p.  600. 

Boone  v.  U.  S.,  257  F.  963,  p.  57. 

Booth  v.  U.  S.,  139  F.  252;  154  F.  836,  p.  196;   87. 

Boren  v.  U.  S.,  144  F.  801,  p.  706. 

Bosselman  v.  U.  S.,  239   F.  82,  p.  301. 

Botsford  v.  U.  S.,  215  F.  510,  p.  174. 

Bowes  v.  U.  S.,  229  F.  960,  p.  178. 

Bowers  v.  U.  S.,  148  F.  379,  p.  162. 

Boyd  v.  U.  S.,  116  U.  S.  616,  p.  15. 

Boyle  v.  U.  S.,  259  F.  803,  p.  235. 

Brace  v.  U.  S.,  149  F.  871,  p.  282. 

Bradford  v.  U.  S.,  129  F.  49,  p.  371. 

Bradley  v.  U.  S.,  264  F.  79,  p.  625. 

Bram  v.  U.  S.,  168  U.  S.,  532,  42     Law  Ed.  568,  p.  62. 

Bridgment  v.   U.   S.,    140   F.   577,   p.   359. 

Brinkman  v.  Morgan,  253  F.  553,  p.  655. 

Bromberger  v.  U.  S.,  128  F.  346,  p.  161. 

Brookerson  v.  State,  225  S.  W.  375,  p.  76. 

Brooks  v.  U.  S.,  146  F.  223,  p.  197. 

Brownson  v.  Schulter,  104  U.  S.  410,  p.  99. 

Brown  v.  U.  S.,  150  U.  S.  93,  148  F.  379;   143  F.  60;   143  F.  60;   260  F. 

752;  257  F.  703;  233  F.  353;  724,  p.  248;  p.  439;  168;  2;   606;   189; 

54;  235. 
Brown  v.  Walker,  161  U.  S.    591,  p.  107. 
Breece  v.  U.  S.,  106  F.  686,  127  F.  761,  226  U.  S.  1,  p.  42. 
Bruce  v.  U.  S.,  202  F.  98,  105,  p.  792. 
Bryant  v.  Robinson,  149  F.  321,  p.  247. 

Bryant  v.  U.  S.,  105  U.  S.  941,  p.  387;   91;   238,  257  F.  383;  257,  386. 
Brzezinski  v.  U.  S.,  198  F.  65,  p.  280. 
Buessell  v.  U.  S.,  258  F.  811,  p.  120. 
Burdick  v.  U.  S.,  236  U.  S.  79,  p.  17. 
Burrell  v.  Montana,  194    U.  S.  578,  p.  13. 
Burton  v.  U.  S.,  196  U.  S.  283,  p.  327. 


x  Table  of  Cases. 

c. 

C.  v.  Burk,  105  Mass.  376,  p.  538. 

C.  v.  Delaney,  1  Grant  p.  a.  224,  p.  366. 

C.  v.  Kingsbury,  5  Mass.  106,  p.  366. 

Caldwell  v.  Parker,  U.  S.  Sup.  Ct.,  Apr.  1920,  p.  248. 

Caha  v.  U.  S.,  152  U.  S.  211,  p.  281. 

Caldwell  v.  U.  S.,  256  F.  805,  p.  181. 

Callan  v.  Wilson,  127  U.  S.  549,  p.  80. 

Callahan  v.  Chicago,  158  F.  988,  p.  84. 

Callahan  v.  U.  S.,  240  F.  683,  p.  538. 

Cameron  v.  U.  S.,  192  F.  548,  p.  17;    108. 

Caminetti  v.  U.  S.,  U.  S.  Sup.  Ct.  Nov.  1916,  p.  636. 

Campbell  v.  U.  S.,  221  F.  186,  p.  142. 

Cannetto  v.  U.  S.,  275  F.  42,  p.  617. 

Cannon  v.  U.  S.,  116  U.  S.  55,  29  Law  Ed.  561,  p.  563. 

Cape  Fear,  etc.,  v.  Pearsal,  90  F.  437,  p.  133. 

Carlisle  v.  U.  S.,  194  F.  830;   194  F.  827;  p.  72;   133. 

Carey  v.  U.  S.,  265  F.  515,  p.  635. 

Carpenter  v.  Winn,  221  U.  S.  533,  p.  69. 

Carter  v.  McClaugry,  183  U.  S.  365;   p.  220;    365. 

Caryle  v.  U.  S.,  16  Wallace  147,  p.  408. 

Castle  v.  Lewis,  254  F.  917,  p.  105. 

Chadwick  v.  U.  S.,  141  F.  225,  p.  238. 

Chadwoski  v.  U.  S.,  194  F.  858,  p.  616. 

Chambers  v.  U.  S.,  237  F.  513;  p.  76;   84;   201. 

Chambliss  v.  U.  S.,  218  F.  154,  p.  86. 

Champion  v.  Ames,  188  U.  S.  321,  47  Law  Ed.  492,  95  F.  453;   p.  207, 

447;   448. 
Charles  v.  U.  S.,  213  F.  707;   213  F.  717;    183  F.  566,  p.  193;   301;    621. 
Chavez  v.  U.  S.,  261  F.  174,  p.  433. 
Chelson  v.  Hoyt,  3  Wheat,  245,  4  Law  Ed.  381,  p.  286. 
Chen  Kee  v.  U.  S.,  196  F.  74,  p.  115. 
Chicago  v.  Giles,  235  F.  804,  p.  454. 
Chicago,  etc.,  Railroad  v.  Chicago,  166  U.  S.  226,  41   Law  Ed.  979,  p 

432. 
Chinese  Laborers  Case,  13  F.  291,  p.  551. 
Chin  v.  U.  S.,  118  F.  543;  264  F.  639,  p.  76;  92. 
Chin  Fong,  258  F.  849,  p.  117. 
Chin  Sing  v.  U.  S.,  227  F.  397,  p.  630. 
Chin  Yah  v.  Caldwell,  187  F.  592,  p.  115. 
Chin  Yow  v.  U.  S.,  208  U.  S.  8;   52  Law  Ed.  369,  p.  105. 
Chitwood  v.  U.  S.,  153  F.  551,  p.  163. 
Christopoula  v.  U.  S.,  230  F.  788;  230  F.  789,  p.  44;  301. 
Ciafridini  v.  U.  S.,  266  F.  471,  p.  122. 

Cincinnati  v.  Kentucky,  U.  S.  Sup.  Ct.  Apr.  1920,  p.  645. 
Clark  v.  U.  S.,  211  F.  916;   202  F.  740;   211  F.  917;   245  F.  112;   265  F. 

104;   269  F.  329,  p.  82;    175;    179;   201;    382;    459. 
Clark  v.  Express  Co.,  U.  S.  Sup.  Ct.  Jan.  1917,  p.  507. 
Clay  v.  Waters,  178  F.  385,  p.  618. 
Cling  v.  U.  S.,  118  F.  538,  p.  367. 
Clinton  v.  Englebrecht,  80  U.  S.  449,  13  Wallace,    20  Law  Ed.  650,  p. 

53. 
Clune  v.  U.  S.,  159  U.  S.  590;  p.  133;   155;   363. 
Coastwise  Lumber  Co.  v.  U.  S.,  259  F.  849,  p.  68. 
Cochran  v.  U.  S.,  147  F.  206,   157  U.  S.  293,  p.  104;   604. 
Coffee  v.  U.  S.,  116  U.  S.  445,   29  Law  Ed.  684;   p.  577. 
Coffey  v.  U.  S.,  116  U.  S.  436,  p.  286. 
Coffin  v.  U.  S.,  156  U.  S.  862;  156  U.  S.  445;   156  U.  S.  432;   p.  91;   93; 

248. 


Table  op  Cases.  xi 

Cohen  v.  U.  S.,  214  F.  32;   157  F.  651;    170  F.  715;    214  F.  23;    p.  59; 

124;    280;    288;    641. 
Cohn  V.  U.  S.,  258  F.  353,  p.  462. 
Cole  v.  U.  S.,  269  F.  250,  p.  274. 
Coleman  v.  State,  44  Tex.  109,  p.  118. 
Coleman  v.  U.  S.,  268  F.  468,  p.  294. 
Collins  v.  U.  S.,  253  F.  609;   219  F.  671;   p.  123;   141. 
Colt  v.  U.  S.,  190  F.  305,  p.  197;   305. 
Commonwealth  v.   Culver,   126   Mass.  464,  p.   60. 
Commonwealth  v.  Davine,  155  Mass.  224;  29  N.  E.  515,  p.  288. 
Commonwealth  v.  Jackson,  132  Mass.  16,  p.  87. 
Com.  v.   Tuck,  20  Pick.  356,  p.  152. 
Com.  v.  Stebbins,  8  Gray,  Mass.  492,  p.  237. 
Connors  v.  U.  S.,  158  U.  S.  408,  p.  122. 
Conrod  v.  U.  S.,  127  F.  798,  p.  155;  371. 

Cook  County  Nat.  Bank  v.  U.  S.,  107  U.  S.  445,  27  Law  Ed.  537,  p.  318. 
Cook  v.  U.  S.,  138  U.  S.   185,  34  Law  Ed.  906,  p.  528. 
Coomeer  v.  U.  S.,  213  F.  2,  p.  179. 
Cooper  v.  U.  S.,  247  F.  45,  p.  43. 
Corenman  v.  U.  S.,  188  F.  424,  p.  133. 
Corley  v.  State,  50  Ark.  305,  p.  60. 
Counselman  v.  Hitchcock,  142  U.  S.  547,  p.  617. 
Couture  v.  U.  S.,  265  F.  525,  p.  236. 
Coyne  v.  U.  S.,  246  F.  120,  p.  113. 
Crane  v.  U.  S.,  259  F.  480,  p.  201. 
Crain  v.  U.  S.,  162  U.  S.  625,  p.  49. 
Creekmore  v.  U.  S.,  237  F.  734,  p.  35. 

Cross  v.  North  Carolina,  132  U.  S.  140,    33  Law  Ed.  287,  p.  569;    645. 
Culver  v.  U.  S.,  257  F.  63,  p.  237. 
Cummins  v.  U.  S.,  238  F.  844,  p.  599. 
Curley  v.  U.  S.,  130  F.  1,  p.  344. 
Cutting  v.  Van  Fleet,  252  F.  100,  p.  34. 
Curtis  Publishing  Co.  v.  Fed.  270  F.  881,  p.  149;  235. 

D. 

Dahl  v.  U.  S.,  234  F.  618,  p.  365. 

Dalton  v.  U.  S.,  154  F.  61,  p.  197. 

Danciger  v.  Cooley,  U.  S.  Sup.  Ct.  Jan.  7,  1919;    p.  453. 

Danciger  v.  Stone,  188  F.  511,  p.  452. 

Daniels  v.  U.  S.,  196  U.  S.  459;   196  F.  459,  p.  280;   616. 

David  v.  Beason,  133  U.  S.  33,  p.  559. 

Davis  v.  Beason,  133  U.  S.  333,  33  Law  Ed.  637,  p.  174. 

Davis  v.  State,  138  Ind.  11,  p.  71. 

Davis  v.  U.  S.,  274  F.  928;  247  F.  394;    107  F.  753;   p.  4;   26;   430. 

Davy  v.  U.  S.,  208  F.  238,  p.  301. 

Day  v.  U.  S.,  229  F.  534,  p.  573. 

Dean  v.  U.  S.,  266  F.  694,  p.  510. 

Debs  v.  U.  S.,  249  U.  S.  211,  p.  181. 

DeBarr,  179  U.  S.,  320,  p.  195. 

DeFour  v.  U.  S.,  260  F.  597,  p.  247. 

Degnan  v.  U.  S.,  271  F.  291,  p.  88. 

DeLomos  v.  U.  S.,  91  F.  497,  p.  255. 

DeMoss  v.  U.  S.,  250  F.  87,  p.  89;  507. 

Denning  v.  U.  S.,  247  F.  463,  p.  641. 

DeOrzco  v.  U.  S.,  237  F.  1008,  p.  51. 

Dernberger  v.  B.  &  O.  243  F.  21,  p.  238. 

Dewitt  v.  Skinner,  232  F.  444,  p.  246. 

Dexter  v.  Kellas,  113  F.  48,  p.  127. 

Dickinson  v.  U.  S.,  159  F.  801,  p.  79. 


xii  Table  of  Cases. 

Diggs  v.  U.  S.,  220  F.  546;  220  F.  545,  p.  118;   640. 

Dill  v.  U.  S.,  152  U.  S.  539,  p.  372. 

Dimmick  v.  U.  S.,  116  F.  825;   135  F.  257;   121  F.  638;   116  F.  825;   121 

F.  638;   p.  71;   229;    317;   359;    412. 
Ding  v.  U.  S.,  246  F.  80;  p.  117;   233. 
Dobbins  Distillery  Co.  v.  U.  S.,  96  U.  S.  395. 
Dodge  v.  U.  S.,  258  F.  300,  p.  91. 
Doe  v.  U.  S.,  253  F.  903,  p.  182. 
Dolan  v.  U.  S.,  133  F.  444;   p.  54;   57;   94. 
Donnell  Co.  v.  Wyman,  156  F.  415,  p.  202. 
Doremus  v.  U.   S.,  262  F.  849,  p.  510. 
Dorsey  v.  U.S.,  101  F.  746,  p.  603. 

Doss  v.  Tyack,  14  Howard  296,  14  Law  Ed.  428,  14  F.  296,  p.  53;    54. 
Dow  v.  U.  S.,  82  F.  904;  226  F.  145,  p.  117;  604. 
Doyle  v.  Union  Pacific  R.  R.  Co.,  147  U.  S.  430,  p.  92. 
Dreier  v.  U.   S.,  221  U.   S.  394,  p.  16. 
Drew  v.  Thaw,  U.  S.  Sup.  Co.  Oct.  Term,  1914,  235  U.  S.  432;   p.  107; 

547. 
Duff  v.  U.  S.,  185  F.  101,  p.  582. 
Dukes  v.  U.  S.,  275  F.  142,  p.  9. 

Dunn  v.  State,  224  S.  W.  893,   40  111.  465;   p.  20;   209. 
Dunn  v.  U.  S.,  238  F.  508,  p.  20. 
Dunlop  v.  U.  S.,  165  U.  S.  486;   p.  172;   238. 
Duplex  v.  Deering,  41  Sup.  Ct.  Rep.    173;   252  F.  722;    41  Sup.  Ct.  172, 

p.  141;   236;   367. 
Durland  v.  U.  S.,  161  U.  S.  306,  p.  191. 
Durst  v.  U.  S.,  266  F.  65,  p.  475. 
Dusold  v.  U.  S.,  270  F.  574,  p.  508. 
Duvall  v.  Dyche,  275  F.  440,  p.  507. 
Duvall  v.  U.  S.,  154  U.  S.  548,  p.  422. 
Dwinnel   v.  U.  S.,   186   F.  754,  p.  364. 
Dyar  v.  U.  S.,  186  F.  620;   106  F.  623,  p.  87;  101;   198. 
Dye  v.  U.  S.,  262  F.  6;   p.  122;   242;   365. 
Dyer  v.  U.  S.,  179  F.  160,  p.  133. 

E. 

Easterday  v.  McCarthy,  256  F.  651,  p.  366. 
Easton  v.  The  State,  188  U.  S.  200,  47  Law  Ed.  456,  p.  645. 
Eber  v.  U.  S.,  234  F.  221,  p.  119. 
Edelstein  v.   U.   S.,   149   F.  642,  p.   13. 
Edgington  v.  U.  S.,  164  U.  S.  361,  41  Law  Ed.  467,  p.  85. 
Edwards  v.  U.  S.,  226  F.  848;  259  F.  686,  p.  201;   382. 
Elder  v.  U.  S.,  243  F.  84,  p.  84. 
Eisenberg  v.  U.  S.,  261  F.  598,  p.  58;  75. 
Ellis  v.  State,  65  Miss.  44,  7  Am.  634,  p.  60. 
Elmer  v.  U.  S.,  260  F.  646,  p.  76. 
Elrod  v.  U.  S.,  266  F.  55,  p.  635. 
Klvvell  v.  U.  S.,  275  F.  775,  p.  7. 
Kmeralds  v.  U.  S.,  154  F.  839,  p.  659. 
Emanuel  v.  U.  S.,  196  F.  317;  p.  53;  197. 
Enders  v.  U.  S.,     188  F.  75,  p.  588. 
Ennis  v.  U.  S.,  154  F.  842,  p.  161. 
England  v.  U.  S.,  272  F.  102,  p.  635. 

Epstein  v.  U.  S.,  271  F.  282;    196  F.  354,  p.  5;    8;    131;    284.. 
Erbaugh  v.  U.  S.,  173  F.  434,  p.  190. 
Erhardt  v.  U.  S.,  268  F.  326,  p.  91. 

Espy  v.  Bank  of  Cincinnati,  18  Wallace  619,  p.  592. 
Estes  v.  U.  S.,  227  F.  818,  p.  659. 

Evans  v.  Trenton  Zab,  764;  153  U.  S.  584;   153  U.  S.  507;   p.  177;   312; 
603. 


Table  of  Cases.  xiii 

Ewing  v.  U.  S.,  136  F.  53;  240  F.  241,  p.  189;   52. 

Exparte  Avery,  235  F.  248,  p.  234. 

Exparte  Bain,  121  U.  S.  13,  p.  9. 

Exparte  Beck,  245  F.  967,  p.  120. 

Exparte  Blodget,  192  F.  73,  p.  106. 

Exparte  Birdsey,  244  F.  972,  p.  129. 

Exparte  Bohnian,  et.  al.,  4  Cranch  75,  p.  408. 

Exparte  Byers,  32  F.  404,  p.  529. 

Exparte  Calloway,  246  F.  263,  p.  234. 

Exparte  Caset,  18  F.  86,  p.  97. 

Exparte  Chin,  224  F.  138,  p.  117. 

Exparte  Charlton,  185  F.  880,  p.  128;   547. 

Exparte  Cohen,  245  F.  667,  p.  234. 

Exparte  Clark,  100  U.  S.  399,  p.  438. 

Exparte  Crookshank,  269  F.  980,  p.  645. 

Exparte  Crowley,  268  F.  1016,  p.  129. 

Exparte  Curtis,  106  U.  S.  371,  Lawyers  Cooperative  Edition,  Book  27, 

page  232,  p.  324. 
Exparte  Doran,  32  F.  76,  p.  187. 
Exparte  Fairbanks  Co.,  194  F.  978,  p.  135. 
Exparte  Finegan,  270  F.  665,  p.  508. 
Exparte  Flores,  272  F.  783,  p.  118. 
Exparte  Friday,  43  F.  916;   43  F.  920,  p.  98;   158. 
Exparte  Gerlach,  247  F.  616,  p.  234. 
Exparte  Geisler,  50  F.  411,  p.  651. 
Exparte  Gilmore,  11  Cal.  624,  p.  98. 
Exparte  Glenn,  111  F.  261,  p.  11. 
Exparte  Graves,  269  F.  461,  p.  105. 
Exparte  Graham,  215  F.  813,  p.  128;   548. 
Exparte  Gregory,  210  F.  680,  p.  116. 
Exparte  Harvell,  76  F.  997,  p.  47. 
Exparte  Hibbs,  261  F.  421,  p.  222. 
Exparte  Lair,  177  F.  789,  p.  632. 
Exparte  Lamar,  274  F.  160,  p.  248. 
Exparte  Lange,  18  Wallace  163,  p.  97. 
Exparte  Lennon,  150  U.  S.  393,  p.  372. 
Exparte  Loo,  210  F.  995,  p.  178. 

Exparte  Lyman,  247  F.  611;   202  F.  303;  p.  95;   304;   374. 
Exparte  Jackson,  96  U.  S.  727;  263  F.  110,  p.  5;  313. 
Exparte  Jin  Hing,  211  F.  73,  p.  106. 
Exparte  King,  246  F.  848,  p.  120. 
Exparte  Houghton,  8  F.  897,  p.  250. 

Exparte  Hudgings,  39  Sup.  Ct.  Rep.    331,  249  U.  S.  378,  p.  3;  35. 
Exparte  McCusky,  40  F.  74,  p.  9. 
Exparte  McLeod,  120  F.  10,  p.  300. 
Exparte  Mitchell,  256  F.  229,  p.  117. 
Exparte  Montgomery,  244  F.  967,  p.  129. 
Exparte  Orocco,  201  F.  106,  p.  414. 
Exparte  Peake.  144  F.  1020,  p.  99. 
Exparte  Peters,  12  F.  46,  p.  152. 
Exparte  Robinson,  19  Wallace  505,  p.  300. 
Exparte  Riggins,  134  F.  404,  p.  437. 
Exparte  Scherer,  195  F.  334,  p.  128. 
Exparte  Shores,  195  F.  627,  p.  304. 
Exparte  Snow,  120  U.  S.  274,  30  Law  Ed.  658,  p.  563. 
Exparte  Siebold,  100  U.  S.  371,  p.  438. 
Exparte  Thaw,  209  F.  954;    214  F.  423,  p.  101;    128. 
Exparte  Tongue,  29  Oregon  48,  p.  296. 
Exparte  U.  S.,  242  U.  S.  27,  p.  97. 
Exparte  Uppercu,  239  U.  S.  435,  p.  246. 


xiv  Table  of  Cases. 

Exparte  Wizua,  188  F.  541,  p.  129;  548. 

Exparte  Virginia,  100  U.  S.  339;  25  Law  Ed.  676,  p.  432. 

Exparte  Waterman,  33  F.  29,  p.  97. 

Exparte  Westbrook,   250   F.   637,  p.  467. 

Exparte  Wilson,  114  U.  S.  423,  p.  9. 

Exparte  Yarbrough,  10  U.  S.  651;   28  Law  Ed.  274,  p.  428. 

Exparte  Young,  211  F.  371;    211  F.  370,  p.  115;    118. 

Exparte  Zentner,  188  F.  344,  p.  548. 

F. 

Falls  v.  U.  S.,  209  F.  547,  p.  198. 

Fane  v.  U.  S.,  209  F.  525,  p.  198. 

Farley  v.  U.  S.,  269  F.  721;   p.  96;   241;    507. 

Faraone  v.   U.   S.,  259  F.  507,  p.   577. 

Farmers  National  Bank  v.  Deering,  91  U.  S.,  33,  p.  590. 

Faulkner  v.  U.  S.,  157  F.  840,  p.  197. 

Faust  v.  U.  S.,  163  U.  S.,  452,  p.  227. 

Feder  v.  U.  S.,  257  F.  694,  p.  366. 

Felix  v.  U.  S.,  186  F.  685,  p.  432. 

Felton  v.  Spiro,  78  F.  576,  p.   133. 

Feely  v.  U.  S.,  236  F.  903,  p.  243. 

Feener  v.  U.  S.,  249  F.  425,  p.  248. 

Ferry  v.  U.  S.,  120  F.  483,  p.  578. 

Field  v.  U.  S.,  137  F.  6,  p.  614. 

Fielder  v.  U.  S.,  227  F.  832,  p.  243. 

Filasto  v.  U.  S.,  21  F.  329,  p.  641. 

Filer  v.  U.  S.  Steele,  228  F.  242,  p.  106.      ■ 

Fillipon  v.  U.  S.,  231  F.  561,  p.  201. 

Findley  v.  Treat,  205  U.  S.  20;    also  131  F.  968,  p.  46. 

Finley  v.  U.  S.,  261  F.  850,  p.  378. 

Finnegan  v.  U.  S.,  231  F.  561,  p.  201. 

Firpo  v.  U.  S.,  261  F.  850,  p.  378. 

First  Nat.  Bank  of  Anamoose  v.  U.  S.  206  F.  374,  p.  452. 

First  v.  Mercantile,  273  F.  119,  p.  600. 

Firth  v.  U.  S.,  253  F.  37,  p.  239. 

Firth  Sterling  Steel  Co.  v.  Bethelem  Steel  Co.,  199  F.  353,  p.  66. 

Fisch  v.  U.  S.,  274  F.  208,  p.  507, 

Fischer  v.  Palmer,  259  F.  355,  p.  233. 

Fish  v.  U.  S.,  215  F.  545;  215  F.  544;  p.  72;  74. 

Fisher  v.  U.  S.,  266  F.  667,  p.  635. 

Fitzpatrick  v.  U.  S.,  178  U.  S.  307,  p.  9. 

Fitzsimmons  v.  U.  S.,  156  U.  S.  477,  p.  212. 

Flagg  v.  U.  S.,  233  F.  481,  p.  5;   63. 

Fleck  v.  U.  S.,  265  F.  617,  p.  462. 

Fletcher  v.  State,  49  Ind.  124,  p.  71. 

Flickenger  v.  U.  S.,  150  F.  1,  p.  603. 

Floren  v.  U.  S.,  186  F.  961,  p.  176. 

Flynn  v.  People,  222  111.  309,  p.  19. 

Foley  v.  U.  S.,  241  F.  587,  p.  76. 

Pontana  v.  U.  S.,  262  F.  283,  p.  179. 

Ford  v.  U.  S.,  259  F.  553;  260  F.  657;  272  F.  491;  259  F.  552.  p.  18;  239. 

Foreman  v.  U.  S.,  255  F.  621,  p.  510. 

Foster  v.  U.  S.,  256  F.  207;  253  F.  481;   165  C.  C.  A;   188  F.  305,  p.  81; 

93;   123;   182;  228. 
Foss  V.  U.  S.,  266  F.  881,  p.  302. 
Four  Hundred  etc.,  v.  U.  S.,  226  U.  S.  173,  p.  621. 
Pox  v.  Ohio.  5  Howard  U.  S.  434,  p.  11. 
POX  v.  State,  5   Howard  432,  p.  561. 
Fraina  v.  D.  S.,  255  P.  28,  p.  182;  213. 


Table  or  Cases.  •     xv 

France,  et  al,  v.  U.  S.,  164  U.  S.  674;   41  Law  Ed.  595;   164  U.  S.  676; 

41  Law  Ed.  595;  164  U.  S.  696,  p.  206;  372. 
Francis  v.  IT.  S.,  152  F.  157;  153  F.  155;  188  U.  S.  375;  47  Law  Ed.  510. 

p.  99;  197;  448. 
Frank  v.  Mangum,  U.  S.  Sup.  Ct.,  Oct.  Term,  1914,  p.  106. 
Franklin  v.  U.  S.,  216  U.   S.  559;    U.  S.  Sup.  Ct.,  Oct.  Term,  1909,  p. 

359;    543. 
Frankfurt  v.  U.  S.,  231  F.  903,  p.  617. 
Freed  v.  U.  S.,  266  F.  1012;  p.  118;   635. 
Freeman  v.  U.  S.,  244  F.  22;  237  F.  815;  227  F.  734;  227  F.  732;  p.  12; 

26;    144;    201;    245. 
Freedman  v.  U.  S.,  274  F.  603,  p.  462. 
Frey  v.  Cudahay,  41  Sup.  Ct.  Rep.,  451,  p.  140 

Friedman  v.  U.  S.,  236  F.  816;  260  F.  388;  233  F.  429;  p.  462;  510;  617. 
Frisbi  v.  U.  S.,  157  U.  S.  160,  p.  178. 
Frohwerk  v.  U.  S.,  U.  S.  Sup.  Ct.,  March,  1919,  p.  366. 
Fyke  v.  U.  S.,  254  F.  227,  p.  509. 

G. 

Gardner  v.  U.  S.,  230,  575,  p.  199. 

Gayon  v.  McCarthy,  40  U.  S.   Sup.   Ct.,  244,  p.  48. 

Gavieres  v.  U.  S.,  220  U.  S.  338,  p.  12;  220. 

Garland  v.  State,  232  U.  S.  642,  p.  49. 

Garst  v.  U.  S.,  180  F.  339,  p.  80. 

Garaufls  v.  U.  S.,  246  F.  910,  p.  599. 

Galbreath  v.  U.  S.,  257  F.  688,  p.  600. 

Gautt  v.  U.  S.,  108;   261,  p.  371. 

Gernert  v.  U.  S.,  240  F.  403,  p.  199. 

Geer  v.  Ct.,  161  U.  S.  519,  p.  457. 

Gelston  v.  Hoyt,  3  Wheat.  246,  p.  424. 

Georgia  v.  Jennings,  50  S.  C.  156,  p.  296. 

Gillette  v.  U.  S.,  236  F.  215,  p.  635. 

Gill  v.  U.  S.,  262  F.  502,  p.  34. 

Gilmore  v.  U.  S.,  268  F.  721,  p.  75. 

Glickstein  v.  U.  S.,  222  U.  S.  139,  p.  16. 

Gluckman  v.  Henkle,  221  U.  S.  508,  p.  547;   128. 

Glasgow  v.  Moyer,  225  U.  S.  425,  p.  130. 

Gladden  v.  Gabbert,  219  F.  855,  p.  133. 

Glim  v.  U.  S.,  177  F.  679,  p.  192. 

Gladstone  v.  U.  S.,  248  F.  117,  p.  247. 

Goldman   v.   U.   S.,   263   F.   340,   p.   659;    245   U.   S.   474,   p.   144;    220   F. 

57,  p.  192. 
Gourdain  v.  U.  S.,  154  F.  453,  p.  197. 
Good  Shot  v.  U.  S.,  154  F.  258,  p.  9. 
Gompers  v.  U.  S.,  233  U.  S.  604,  p.  31. 
Gouled  v.  U.  S.,  41  Sup.  Ct.  Rep.,  261,  p.  6. 
Goodwin  v.  U.  S.,  200  F.  123,  p.  72. 
Gowling  v.  U.  S.,  269  F.  215,  p.  76. 
Gordon  v.  U.  S.,  254  F.  53,  p.  113. 
Goldsberg  v.  U.  S.,  160  U.  S.,  70,  p.  127. 
Gould  v.  U.  S.,  209  F.  730,  p.  141. 
Good  v.  U.  S.,  159  U.  S.  663,  p.  160. 
Goldstein  v.  U.  S.,  258  F.  908,  p.  118. 
Goll  v.  U.  S.,  166  F.  419,  p.  588. 
Goublin  v.  U.  S.  261  F.  5,  p.  235. 
Goff  v.  U.  S.,  257  F.  294,  p.  236. 
Green  v.  U.  S.,  150  F.  561,  p.  706;   266  F.  779,  p.  18;    75;   18;   238;   245 

U.  S.  559,  p.  89. 
Griffith  v.  U.  S.,  261  F.  159,  p.  635. 


xvi  Table  of  Cases. 

Growling  v.  U.  S.,  269  F.  215,  p.  635. 

Grant  v.  U.  S.,  268  F.  443,  p.  201;    227  U.   S.  704,  p.  29;    252   F.  693,  p. 

366;    150  F.  560,  p.  402. 
Gritt  v.  Bond,  102  Maryland,  383,  p.  9. 
Grantell  v.  U.  S.,  232  U.  S.  647,  p.  44. 
Gross  v.  U.  S.,  265  F.  606,  p.  82. 
Grimes  v.  Malcolm,  164  U.  S.  490,  p.  89. 
Griggs  v.  Nadean,  250  F.  783,  p.  92. 
Grayboges,  v.  U.  S..  250  F.  793,  p.  118. 
Gretsch  v.  U.  S.,  242  F.  897,  p.  119;    231  F.  57,  p.  617. 
Grin  v.  Shine,  177  U.  S.  47,  p.  128. 
Grandi  v.  U.  S.,  262  F.  123,  p.  143. 
Grimm  v.  U.  S.,  156  U.  S.  604,  p.  168. 
Griffin  v.  U.  S.,  248  F.  6,  p.  188. 
Give  Woo  v.  U.  S.,  250  F.  428,  p.  509. 
Gregory  v.  U.  S.,  272  F.  119,  p.  510. 

Graves  v.  U.  S.,  165  U.  S.,  323;   105  U.  S.  121;  p.  586;   599. 
Gradwell  v.  U.  S.,  243  U.  S.  476,  p.  442. 
Great  Northern  v.  Rainea,  255  F.  762,  p.  454. 
Grandi  v.  U.  S.,  262  F.   123,  p.   462. 
Grogson  v.  Lynch,  163  U.  S.  468,  p.  219. 
Grancourt  v.  U.  S.,  258  F.  25,  p.  235. 
Grahl  v.  U.  S.,  261  F.  487,  p.  398. 
Grayson  v.  U.  S.,  272  F.  554,  p.  366. 
Gulff  Ry.  v.  Campbell,  49  F.  354,  p.  90. 
Gurinsky  v.  U.  S.,  259  F.  378,  p.  75. 
Guinn  v.  U.  S.(  228  F.  104,  p.  432. 

H. 

Hagan  v.  U.  S.,  268  F.  344,  p.  366. 

Hale  v.  Henkel,  201  U.  S.  67;  201  U.  S.  43,  p.  17;  13. 

Hall  v.  Willcox,  225  F.  333,  p.  203. 

Hallock  v.  U.  S.,  185  F.  417,  124,  p.  288. 

Hamburg  v.    U.  S.,  250  F.  747,  p.  236. 

Hamm  v.  Chicago  Railway  Co.,  243  F.  143,  p.  450. 

Hanley  v.  U.  S.,  186  F.  711,  p.  125. 

Hanna  v.  Cline,  263  F.  599,  p.  248. 

Hannish  v.  U.  S.,  227  F.  584,  p.  18;   163. 

Hanson  v.  U.  S.,  157  F.  749,  p.  177. 

Hardesty  et.  al,  U.  S.,  164  F.  420,  p.  66. 

Hardy  v.  U.  S.,  71  F.  158,  p.  50;  184  F.  702,  214  U.  S.  519,  p.  523. 

Hair  v.  U.  S.,  240  F.  333,  p.  199. 

Harlan  v.  McGouer,  218  U.  S.,  44,  p.  106;    218  U.  S.  442,  526. 

Harrington  v.  U.  S.,  267  F.  97,  p.  365. 

Harrison  v.  U.  S.,  200  F.  673;    163  U.  S.  140;   200  F.  662;    140;    p.  104; 

53"    54'    191. 
Jeff  Harrison  v.'  U.  S.(  163  U.  S.  140,  p.  154. 
Harshfield  v.  U.  S.,  260  F.  659,  p.  182. 
Harts  v.  U.  S.,  140  F.  843,  p.  659. 
Harwick  v.  U.   S.,  257  F.   505,  p.  282. 
Hass  v.  Henkle,  216  U.  S.  462,  p.  344. 
Hastings  v.  Murchie,  219  F.  83,  p.  48. 
Hawke  v.  Smith,  40  Sup.  Ct.  Rep.,  495,  p.  507. 
Haynes  v.  U.  S.,  101  F.  819,  p.  429;   94. 
Hays  v.  U.  S.,  231  F.  106;   169  F.  101,  p.  635,  604. 
Hendry  v.  U.  S.(  233  F.  5,  p.  201. 
Hendricks  v.  Gonzales,  67  F.  351,  p.  422. 
Hendricks  v.  U.  S.,  223  U.  S.  178,  p.  284. 
Henry  v.  Henkel,  U.  S.  Sup.  Ct.  Oct.  Term,  1914,  p.  106. 


Table  of  Cases.  xvii 

Henry  v.   Sowles,  28  F.  481,  p.  320. 

Hinningsen  v.  Whaley,  230  F.  650,  p.  235. 

Heitler  v.  U.  S.,  244  F.  140;    244;    140,  p.  309;    636;    119. 

Hickory  v.  U.  S.,  151  U.  S.  303,  p.  126;  '93;   160  W.  S.  408. 

Hickson  v.  U.  S.,  258  F.  867,  p.  95;   258  F.  867,  p.  654. 

Higgings  v.  U.  S.,  185  F.  710,  p.  133. 

Hillman  v.  U.  S.,  192  F.  264,  p.  41. 

Hillsboro  v.  Knotts,  273  F.  221,  41  Sup.  Ct.  Rep.,  298,  p.  245. 

Hogan  v.  O'Neil,   41  Sup.  Ct.  Rep.,  222,  p.  29. 

Hogue  v.  U.  S.,  184  F.  245,  p.  283. 

Hogus  v.  U.  S.,  192  F.  918,  p.  283. 

Holder  v.  U.  S.,  150  U.  S.  91,  p.  33. 

Holgren  v.  U.  S.,  Oct.  Term,  1909,  156  F.  439,  p.  403. 

Hollis  v.  U.  S.,  246  F.  832,  p.  118. 

Hollister  v.  Zions,  111  U.  S.  62. 

Holmacher  v.  U.  S.,  266  F.  979,  p.  88. 

Holsman  v.  U.  S.,  248  F.  193;   248  F.  193,  p.  365,  p.  200. 

Homer  v.  U.  S.,  143  U.  S.  207,  p.  152. 

Hoover  v.  State,  59  Ala.  57,  p.  236;   63,  p.  266. 

Hopt  v.  Utah,  110  U.  S.,  574,  p.  61. 

Horman  v.  U.  S.,  116  F.  350,  p.  189;   116  F.  350,  p.  191. 

Horn  v.  U.  S.,  182  F.  721,  p.  189. 

Horn  v.  Mitchell,  232  F.  819,  p.  444. 

Horner  v.  U.  S.,  147  U.  S.  449,  p.  208;   143  U.  S.  570;   143  U.  S.  449,  p. 

213. 
Hornnig  v.  D.  C,  41  Sup.  Ct.  Rep.,  53,  p.  83. 
Horowitz  v.  U.   S.,  262  F.  48,  p.  123. 
Hosier  v.  U.  S.,  260  F.  155,  p.  510. 
Hoss  v.  U.  S.,  232  F.  328,  p.  654. 

Houston  Ice  Cream  Co.  v.  Harlan,  212  S.  W.  779,  p.  75. 
Houston  v.  U.  S.,  217  F.  852,  p.  374. 
Howard  v.  Moyer,  206  F.  555,  p.  99. 
Howe  v.  U.  S.,  247  F.  292,  p.  118. 
Huber  v.  U.  S.,  259  F.  766,  p.  534. 
Huffman  v.  U.  S.,  259  F.  35,  p.  635. 
Hume  v.  U.  S.,  118  F.  689,  p.  189. 
Humas  v.  U.  S.,  182  F.  185,  p.*  189. 
Hunter  v.  Hunter,  187  S.  W.  10,  49,  p.  143. 

Hunter  v.  U.  S.,  272  F.  235,  p.  10,  264  F.  831,  p.  76;   264  F.  831,  p.  508. 
Huntington  v.  U.  S.,  175  F.  950,  p.  373. 
Hyde  v.  Shine,  199  U.  S.,  62,  p.  371. 


Indianapolis  R.  R.  Co.  v.  Horst,  93  U.   S.  291,  p.  98. 

Indianapolis,  etc.,  v.  Horst,  83  U.  S.  300,  p.  89. 

Innes  Tobin,  240  U.  S.  127;  U.  S.  Sup.  Ct.  Feb.,  1916,  p.  129;   548. 

In  re  Aldrich,  16  F.  370;   p.  266. 

In  re  Baldwin,  27  F.  187,  p.  439. 

In  re  Barber,  75  F.  980,  p.  187. 

In  re  Beach,  259  F.  597,  p.  241. 

In  re  Belknap,  96  F.  614,  p.  49. 

In  re  Benson,  130  F.  486,  p.  46. 

In  re  Boggs,  45  F.  475,  p.  11. 

In  re  Bonner,  151  U.  S.  242;    151  U.  S.  252;    p.  94;   97. 

In  re  Briggs,  135  N.  C.  122,  p.  13. 

In  re  Brule,  71  F.  943,  p.  300. 

In  re  Byron,  18  F.  788,  p.  143. 

In  re  Canter  &  Cohen,  117  F.  356,  p.  15. 

In  re  Charge  to  Grand  Jury,  30  Fed.  Case  No.  18265,  2  McLean  1,  p.  415. 


xviii  Table  of  Cases. 

In  re  Christian,  82  F.  885,  p.  98. 

In  re  Classen,  140  U.  S.  205,  p.  9. 

In  re  Coy,  312  F.  794;    127  U.  S.  731;   p.  372;    439. 

In  re  Day,  27  F.  678,  p.  151. 

In  re  Debs,  158  U.  S.  564,  p.  155. 

In  re  Dow's  Estate,  105  F.  889,  p.  15. 

In  re  Duplex,  252  F.  722,  p.  235. 

In  re  Fowler,  4  F.  303,  p.  151. 

In  re  Gregory,  219  U.  S.  210,  p.  106. 

U.  S.  v.  Grin,  112  F.  795,  p.  28. 

In  re  Groves,  117  F.  798,  p.  97. 

In  re  Harris,  221  U.  S.  274;  164  F.  292;  221  U.  S.  272,' p.  14;  617. 

In  re  Henry,  123  U.  S.  373;  123  U.  S.  372,  p.  195;  197. 

In  re  Hess,  134  F.  Ill,  p.  13. 

In  re  Jen  Yuen,  188  F.  350,  p.  101. 

In  re  Kaine,  14  Howard  103,  p.  28. 

In  re  Kelley,  243  F.  696;  71  F.  545,  p.  35;  543. 

In  re  Kollock,  165  U.  S.  536;   41  Law  Ed.  813;   243  F.  696,  p.  303;   584. 

In  re  Lancaster,   137  U.   S.   393,  p.   439. 

In  re  Loney,  134  U.  S.  372,  p.  644. 

In  re  Marks,  176  F.  1018,  p.  618. 

In  re  Marx,  255  F.  344,  p.  64. 

In  re  Miller,  114  F.  963;   42  F.  307,  p.  371;    650. 

In  re  Mills,  135  U.  S.  263,  p.  96. 

In  re  Mize,  et  al,  172  F.  945,  p.  618. 

In  re  Nagle,  135  U.  S.  63;  39  F.  833,  p.  300;  301. 

In  re  Najour,  174  F.  735,  p.  116. 

In  re  Neagle,  135  U.  S.  1;   34  Law  Ed.  55,  p.  428. 

In  re  Nelson,  69  F.  712,  p.  560. 

In  re  Perkins,  100  F.  950,  p.  28. 

In  re  Purvine,  96  F.  192,  p.  618. 

In  re  Quarrels,  158  U.  S.  532,  p.  438. 

In  re  Quinn,  176  F.  1020,  p.  46. 

In  re  Rapier,  143  U.  S.  110;   p.  177;    213. 

In  re  Sing  Tuck,  126  F.  397,  p.  28. 

In  re  Steiner,  195  F.  300,  p.  33." 

Isabell  v.  U.  S.,  227  F.  788,  p.  143;   243. 

In  re  San  Quah,  31  F.  327,  p.  515. 

Issacs  v.  U.  S.,  159  U.  S.  487,  p.  127. 

In  re  Strupp,  12  Blatchf.  509,  p.  89. 

In  re  Toledo  Newspaper  Co.  v.  U.  S.,  237  F.  986;  38  Sup.  Ct.  Rep.,  560; 

247  U.  S.  402,  p.  34. 
In  re  Tri  State,  253  F.  605,  p.  5. 
In  re  U.  S.  v.  Providence,  241  F.  524,  p.  34. 
In  re  Waite,  81  F.  359,  p.  650. 
In  re  Weinstein,  271  F.  5;   271  F.  763,  p.  6. 
I  p.  re  Welch,  57  F.  576,  p.  650. 
In  re  Weltz,  123  U.  S.  136,  p.  163. 
In  re  Wight,  134  U.  S.  136,  p.  163. 
In  re  Wilson,  168  F.  566,  p.  621. 
In  re  Wright,  134  U.  S.  136,  p.  99. 
In  re  Zenter,  188  F.  344,  p.  128. 


Jacobs  v.  U.  S.,  161  F.  694,  p.  615. 
Jacobson  v.  U.  S.,  272  F.  399,  p.  423. 
Jack  v.  Kansas,  199  U.  S.  381,  p.  13. 
Jackson  v.  U.  S.,  266  F.  770,  p.  462. 
Jacksonville   v.   Smith,   78  F.  295,  p.   135. 


V 

Table  of  Cases.  xix 

James  v.  Evans,  149  F.  136,  p.  133. 

Japnese  Immigrant  Case,  189  U.  S.  86;  47  Law  Ed.  72,  p.  105. 

Jelke  v.  U.  S.,  255  F.  264,  p.  366. 

Jeller  v.  U.  S.,  213  U.  S.  138,  p.  634. 

Jennings  v.  U.  S.,  264  F.  399,  p.  35. 

Jin  Foey  Moy  v.  U.  S.,  41  Sup.  Ct.  Rep.,  98,  p.  248;   510. 

Joedick  v.  U.  S.,  85  F.  372,  p.  216. 

Johnson  v.  U.  S.,  163  F.  30;  158  F.  69;   170  F.  581;   221  F.  250;   215  F. 

679;  225  U.  S.  405;  270  F.  168;  247  F.  92;  158  F.  69;  p.  20;  49;  92; 

612;  614;  615;  639;  641. 
Johnson  v.  Sayre,  158  U.  S.  109,  p.  361. 
Jolly  v.  U.  S.,  170  F.  402;  42  Law  Ed.  185,  p.  380. 
Jones  v.  U.  S.,  137  U.  S.  202,  34  Law  Ed.  691;    162  F.  419;    137  U.  S. 

211,  162  F.  417;   27  F.  447,  p.  21;   40;   163;   529. 
Jordan  v.  State,  30  S.  W.  445,  p.  142. 

K. 

Kahn  v.  U.  S.,  214  F.  54;  286;   616;   629;   204  F.  54. 

Kalem  v.  U.  S.,  196  F.  888,  p.  629. 

Kambeitz  v.  U.  S.,  262  F.  378,  p.  382. 

Kansas  v.  Adams,  20  Kans.  311,  p.  87. 

Kaplam  v.  U.  S.,  229  F.  389,  p.  301. 

Karem  v.  U.  S.,  126  F.  250,  p.  430. 

Kasle  v.  U.  S.,  177  F.  147,  p.  462. 

Kaufman  v.  U.  S.,  202  F.  614,  212  F.  613,  p.  616;  653. 

Kavaloff  v.  U.  S.,  202,  475,  p.  616. 

Kaye  v.  U.  S.,  177  F.  147,  p.  265. 

Keane  v.  U.  S.,  272  F.  577,  p.  365. 

Keliher  v.  Mitchell,  250  F.  904,  p.  249. 

Kelley  v.  Lewelling,  274  F.  112,  p.  507. 

Kelley  v.  U.  S.,  258  F.  403;  250  F.  947,  p.  54;   34. 

Keller  v.  U.  S.,  23  U.  S.  138,  p.  632. 

Keltenbach  v.  U.  S.,  202  F.  377,  p.  54;  591. 

Kenney  v.  Plymouth  Rock  et  al,  213  F.  449,  p.  130. 

Kennedy  v.  U.  S.,  275  F.  183,  p.  693. 

Kerrch  v.  U.  S.,  171  F.  366,  p.  615. 

Ketchum  v.  U.  S.,  270  F.  416,  p.  506. 

Kie  v.  U.  S.,  27  F.  351,  p.  560. 

Kingman  v.  Western  Mfg.  Co.,  170  U.  S.  675,  p.  98. 

Kinser  v.  U.  S.,  231  F.  865,  p.  636. 

Kirby  v.  U.  S.,  174  U.  S.  47,  43  Law  Ed.  61,  174  U.  S.  890,  p.  382;   19. 

Kirk  v.  U.  S.,  192  F.  273,  p.  30. 

Kirchmer  v.  U.  S.,  255  F.  301,  p.  89. 

Kirkwood  v.  U.  S.,  256  F.  825,  p.  158. 

Kissel  v.  Walker,  270  F.  492,  p.  141. 

Kittenbach  v.  U.  S.,  202  F.  379,  p.  81. 

Knoch  v.  White,  40  Sup.  Ct.  Rep.,  566,  p.  117. 

Knoell  v.  U.  S.,  239  F.  16;  238  U.  S.  78,  p.  617. 

Knote  v.  U.  S.,  94  U.  S.,  94  U.  S.  157;  24  Law  Ed.  442,  p.  651. 

Knowles  v.  U.  S.,  170  F.  410,  p.  173. 

Konka  v.  U.  S.,  166  F.  91,  p.  172. 

Korten  v.  Seney,  68  N.  128;  24,  p.  207. 

Krakowski  v.  U.  S.,  161  F.  885,  p.  251. 

Krause  v.  U.  S.,  267  F.  183,  p.  241. 

Krewzer  v.  U.  S.,  254  F.  35;  254  F.  34,  p.  76;  120. 

Krechman  v.  U.  S.,  41  Sup.  Ct.  Rep.,  514,  p.  333. 

Kurtz  v.  Moffett,  115  U.  S.  487,  p.  378. 


xx  Table  of  Cases. 


Lamar  v.  U.  S.,  Sup.  Ct.  Oct.  1915,  p.  353. 

Lamborn  v.  U.  S.  Atty.,  265  F.  944,  p.  242. 

Lang  v.  U.  S.,  133  F.  204,  p.  22. 

Latham  et  al,  v.  U.  S.  Circuit  Court  Appeals  5th  Circuit,  226  F.  p.  71 ; 

144;    210  F.  159,  p.   121;    226   F.   420,  p.  109. 
Lanton  v.  Steele,  152  U.  S.  133,  p.  457. 
Laster   Grain   Co.   v.   U.    S.,   250   F.   826,   p.   243. 
Laughter  v.  U.  S.,  259  F.  94,  p.  475. 
Laurada  v.  U.  S.,  85  F.  760;  p.  518. 
Leach  v.  Carlisle,  267  F.  61,  p.  199. 
Ledbetteo  v.  U.  S.,  170  U.  S.  606,  p.  239. 
Leders  v.  U.  S.,  210  F.  419,  p.  616. 
Leedock  v.  U.  S.,  224  F.  431,  p.  103;  224  F.  431,  p.  134. 
Lee  v.  U.  S.,  250  F.  694,  p.  630;   156  F.  948,  p.  175. 
Lee  Lin  v.  U.  S.,  240  F.  408,  p.  630;  250  F.  694,  p.  654. 
Le  Grand  v.  U.  S.,  12  F.  577,  p.  439. 
Lehman  v.  U.  S.,  127  F.  41,  p.  371. 
Lemon  v.  Imperial,  etc.,  199  F.  927,  p.  125. 
Lemon  v.  U.  S.,  164  F.  953,  p.  195. 
LeMore  v.  U.  S.,  253  F.  887,  p.  213;   253  F.  887,  p.  86. 
Len  Lin  Shen,  217  F.  317,  p.  115. 
Letterman  v.  U.  S.,  246  F.  940,  p.  91. 
Levy  v.  U.  S.,  271  F.  942,  p.  242. 
Lewis  v.  McCarthy,  274  F.  496,  p.  506. 
Lewis  v.  U.  S.,  146  U.  S.  370,  p.  126. 
Lewis  Pub.  Co.  v.  Morgan,  229  U.  S.  288,  p.  181. 
Lexington  Mill  &  Elevator  Co.  v.  U.  S.,  202  F.  615,  p.  624. 
Leyer  v.  U.  S.,  183  F.  102,  p.  141. 
Lobosco  v.  U.  S.,  183  F.  742,  p.  412. 
Lockhart  v.  U.  S.,  250  F.  610,  p.  177. 
Lincoln  v.  Power,  151  U.  S.  442,  p.  89. 
Linn  v.  U.  S.,  234  F.  543,  p.  64;  234  F.  543,  p.  201. 
Linn  Bing  Wey,  v.  U.  S.,  201  F.  379,  p.  115. 
Linnegen  v.  Morgan,  241  F.  645,  p.  268. 
Linton  v.  U.  S.,  223  F.   677,  p.   739. 
Lipman  v.  U.  S.,  219  F.  882,  p.  368;   374. 
Littenbach  v.  U.  S.,  202  F.  379,  p.  93. 
Lockwood  v.  U.  S.,  178  F.  437,  p.  586. 
Logan  v.  U.  S.,  123  F.  291;  260  F.  746,  363  Law  Ed.  42;  144  U.  S.  26;  144 

U.  S.  301,  p.  21;  54;  144  U.  S.  263,  p.  301;  44,  p.  506;  258;  p.  364. 
Lohman  v.  Co.,  243  F.  517,  p.  238;    120,  243  F.  517. 
Loiseau  v.   State,  22   Southern  Rep.,   138,  p.   209. 
Lcuie  v.  U.  S.,  218  F.  36,  p.  11. 

Lovata  v.  State  of  New  Mexico,  242  U.  S.  199,  p.  212. 
Lovejoy  v.  U.   S.,  228  U.   S.  171,  p.   92. 
Loving  v.  U.  S.,  91  F.  881,  p.  122. 
Low  v.  U.  S.,  169  F.  86,  p.  79. 
Lowden  v.  U.  S.,  149  F.  675;  149  F.  677,  p.  76;  70. 
Lueders  v.  U.  S.,  210  F.  421,  p.  133. 
Lumyam  v.  U.  S.,  193  F.  970,  p.  67. 
Lung  v.  U.  S.,  218  F.  817,  p.  118. 
Lyman  v.  U.  S.,  241  F.  945,  p.  199;  241  F.  945,  p.  64. 
Lynch  v.  State,  193  S.  W.  667,  p.  76. 

M. 

Mackin  v.  U.  S.,  117  U.  S.  351;  177  U.  S.  348;  117  U.  S.  255,  p.  136;  372. 
MacKnight  v.  U.  S.,  263  F.  832;   p.  63;   88. 


Table  of  Cases.  xxi 

Magnetic  Healing  v.  McAnulty,  137  U.  S.  94;    47  Law  Ed.  90,  p.  202. 

Magon  v.  U.  S.,  260  F.  81,  p.  154. 

Malvin  v.  U.  S.,  252  F.  449,  p.  617. 

Mamaux  v.  U.  S.,  264  F.  816,  p.  43. 

Manning  v.  U.  S.,  275  F.  29,  p.  13. 

Manuel  v.  U.  S.,  254  F.  272,  p.  75. 

"Marinna  Flora"  11  Wheat.  1,  p.  545. 

Markham  v.  U.  S.,  160  U.  S.  319;   40  Law  Ed.  441;   30  Cyc.  1425,  p.  285. 

Marks  v.  U.  S.,  196  F.  476,  p.  629. 

Marrin  v.  U.  S.,  167  F.  951,  p.  83. 

Marshall  v.  Gordon,  243  U.  S.    521,  p.  34. 

Martin  Lumber  Co.  v.  Johnson,  70  Ark.,  219;   66  S.  W.  925,  p.  267. 

Martin  v.  U.  S.,  271  F.  685;   168  F.  198;  p.  296;   645. 

Masses  v.  Patten,  244  F.  535;   p.  411;   247. 

Mason  v.  U.  S.,  244  U.  S.  362,  p.  18. 

Mathews  v.  U.  S.,  192  F.  490,  p.  154. 

Matthews  v.  U.  S.,  32  Court  of  Claims,  123,  p.  292. 

Matter  v.  Lacey,  189  Okla.,  4,  p.  136. 

Matters  v.  U.  S.,  261  F.  826,  p.  399;   244  F.  736,  p.  45. 

Mattox  v.  U.  S.,  146  U.  S.  140;   156  U.  S.  240,  p.  19;  133. 

May  v.  U.  S.,  199  F.  42;  236  F.  495;  99  F.  54,  p.  37;   110;   588. 

Mays  v.  U.  S.,  199  F.  61,  p.  122. 

Maxwell  v.  Dow,  176  U.  S.  536,  p.  19. 

McCallum  v.  U.  S.,  247  F.  27,  p.  82;  599. 

McCarthy  v.  U.  S.,  187  F.  117,  p.  191. 

McClendon  v.  U.  S.,  229  F.  523,  p.  199. 

McCoy  v.  U.  S.,  247  F.  861,  p.  112. 

McDonald  v.  U.  S.,  171  U.»S.,  689;    63  F.  426;    87  F.  324,  p.  212;   264; 

734. 
McDonald,  et  al,  v.  Pless  et  al,  206  F.  262;   241  F.  793;  p.  54-   57;   8:8. 
McElroy  v.  U.  S.,  164  U.  S.  76,  p.  54. 
McGrath  v.  U.  S.,  275  F.  295,  p.  308. 
McGregor  v.  U.  S.,  134  U.  S.  188,  p.  327. 
McGinnis  v.  U.  S.,  256  F.  621,  p.  119;   366. 
Mclnerney  v.  U.  S.,  143  F.  729,  p.  295. 
McKelvy  v.  U.  S.,  241  F.  80;   p.  291;   365. 
McKenna  v.  U.  S.,  127  F.  88,  p.  429. 
McKibbers  v.  Phila.,  251  F.  577,  p.  75. 
McKnight  v.  U.  S.,  113  F.  452;  252  F.  687;  115  F.  981;  97  F.  208;  252  F. 

687;   111  F.  735;  97  F.  210;  263  F.  832;   292  U.  S.  614;   122  F.  926; 

249  U.  S.  614;  p.  14;   63;   88;  94;   211;  235;  238;   366;   603. 
McLean  v.  U.  S.,  253  F.  694,  p.  626. 
McNamara  v.  Henkel,  U.  S.  Sup.  Ct.,  266  U.  S.  520;  U.  S.  Sup.  Ct.  Oct. 

Term,   1912;    p.   12;    547. 
McNeil  v.  U.  S.,  246  F.  827,  p.  57. 
McNutt  v.  U.  S.,  267  F.  670,  p.  82;    126. 

McPherson  v.  Blacker,  146  U.  S.  1;   36  Law  Ed.  869,  p.  647. 
McShann  v.  U.  S.,  231  F.  923,  p.  163. 
Medrano  v.  State,  32  Tex.  Crim.  214,  p.  237. 
Melanson  v.  U.  S.,  2-56  F.  783,  p.  510. 
Menefee  v.  U.  S.,  236  F.  826,  p.  200. 

Merchants'  Bank  v.  The  State  Bank,  11  Wallace  647,  p.  592. 
Metropolitan  Street  Railway  v.  Davis,  112  F.  634,  p.  127. 
Meyer  v.  U.  S.,  218  F.  372,  p.  144. 
Miggins  v.  U.   S.,  272  F.  41,  p.   6. 
Milby  v.  U.  S.,  109  F.  638,  p.  189. 
Miller  v.  U.  S.,  174  F.  35;   242  F.  907,  p.  195;   558. 
Miner  v.  U.  S.,  244  F.  422,  p.  95. 
Minotto  v.  Bradley.  252  F.  600,  p.  247. 
Missouri  Drug  Co.  v.  Wyman,  129  F.  623,  p.  202. 


xxii  Table  of  Cases. 

Mitchell  v.  U.  S.,  196  F.  874;  229  F.  357;  229  P.  358,  p.  88;  625;  654. 

Moens  v.  U.  S.,  267  P.  317;  267  F.  318;  p.  123;  127;  178. 

Moffatt  v.  U.  S.,  232  F.  522,  p.  200. 

Montgomery  v.  U.  S.,  162  U.  S.  400;  162  U.  S.  410;   40  Law  Ed.  1020,  p. 

160. 
Montoya  v.  U.  S.,  262  F.  759,  p.  432. 
Moore  v.  Illinois,  14  Howard  U.  S.  20,  p.  11. 

Moore  v.  U.  S.,  150  U.  S.  57;  160  U.  S.  268;  p.  133;  288;   381;   598. 
Morgan  v.  Adams,  226  P.  719,  p.  97. 
Morgan  v.  Sylvester,  231  F.  886,  p.  12. 
Morgan  v.  U.  S.,  148  F.  189;  148  F.  190,  p.  57;  385. 
Morris  v.  U.  S.,  161  F.  672;   161  F.  672;   168  F.  682;   229  P.  516;   261  P. 

175,  p.  122;   282;   462;    577;   587. 
Morse  V.  U.  S.,  255  F.  681;   174  F.  539,  p.  92;    605. 
Moses  v.  Patten,  244  F.  535,  p.  182. 
Moses  v.  Patton,  246  F.  24,  p.  182. 
Moses  v.  U.  S.,  221  F.  863,  p.  199. 
Mossem  v.  U.  S.,  266  F.  18,  p.  101. 

Motes  v.  U.  S.,  178  U.  S.  471;   178  U.  S.  458,  p.  19;   438. 
Mounday  v.  U.  S.,  225  P.  965;   p.  8;    201. 
Mudd  v.  Burrows,  91  U.  S.  441,  p.  89. 
Mullan  v.  U.  S.,  212  U.  S.  516,  p.  120. 
Mullens  v.  U.  S.,  106  P.  892,  p.  93. 
Murff  v.  State,  68  Tex.  App.  66,  p.  286. 
Murphy  v.  Mass,  177  U.  S.  155,  p.  100. 
Murray  v.  U.  S.,  247  F.  874,  p.  231. 

N. 

Naftzer  v.  U.  S.,  200  F.  497;  500,  p.  219. 

Nakano  v.  U.  S.,  262  F.  761,  p.  235. 

Neal  v.  Delaware,  103  U.  S.  370,  p.  438. 

Neall  v.  U.  S.,  118  F.  699,  p.  254. 

Nee  v.  U.  S.,  267  F.  84,  p.  88;  119. 

Neff  v.  U.  S.,  165  F.  273,  p.  344. 

Nemcof  v.  U.  S.,  202  P.  911,  p.  617. 

New  v.  U.  S.,  245  P.  710,  p.  201. 

Newberry  v.  U.  S.,  41  Sup.  Ct.  Rep.,  469,  p.  442. 

Newcomb  v.  Wood,  97  U.  S.  581,  p.  98. 

New  Orleans  National  Bank  v.  Merchant,  18  F.  841,  p.  149. 

New  York  v.  Eno.,  155    U.  S.  89,  p.  644. 

New  York  Railroad  Co.  v.  U.  S.,  212  U.  S.  481,  p.  138. 

New  York  Supreme  Court  Justices  v.  U.  S.,  76  U.  S.  282,  p.  53. 

Nichamin  v.  U.  S.,  263  F.  888,  p.  541. 

Nielto  v.  Clark,  18  Fed.  Case,  236,  p.  557. 

Nininger  v.  Cowan,  101  F.  789,  p.  133. 

Norcross  v.  U.  S.,  209  F.  13,  p.  29. 

Norton  v.  U.  S.,  188  F.  256;  205  F.  593,  p.  602. 

O. 

O'Conner  v.  Patter,  276  F.  32,  p.  8. 

O'D'ell  Mfg.  Co.  v.  Tibbetts,  212  F.  652,  p.  74. 

Oesting  v.  U.  S.,  234  F.  304,  p.  201. 

O'Hare  v.  U.  S.,  253  F.  538,  p.  182. 

Ohio  v.  Brooks,  173  U.  S.  299,  43  Law  Ed.  699,  p.  647. 

Olson  v.  U.  S.,  133  F.  852,  p.  57. 

Oliver  v.  U.  S.,  230  F.  971,  p.  22. 

One  v.  U.  S.,  274  F.  99,  p.  453. 

One  Pearl  Chains  v.  U.  S.,  123  F.  371,  p.  658. 


Table  of  Cases.  xxiii 

O'Neil  v.  Vermont,  144  U.  S.  574. 

Oppenheim  v.  U.  S.,  241  F.  625,  p.  104;   241  F.  625,  p.  154,  p.  599. 

Orear  v    U.  S.,  261  F.  259,  p.  441. 

Orourke,  251  F.  768,  p.  34;  251  F.  768,  p.  304. 

Orozco  v.  U.  S.,  237  F.  1008,  p.  423. 

Orth  v.  U.  S.,  252  F.  566,  p.  304. 

Ossendorf  v.  U.  S.,  272  F.  257,  p.  228. 

Ozillo  v.  U.  S.,  268  F.  242,  p.  95. 


Parke  Davis  v.  U.  S.,  255  F.  933,  p.  625. 

Paulsen  v.  U.  S.,  199  F.  423,  p.  639. 

Papas  v.  U.  S„  241  F.  665,  p.  641. 

Pablo  v.  U.  S.,  242  F.  905,  p.  652. 

Packas  v.  U.  S.,  240  F.  350,  p.  164. 

Parish  v.  U.  S.,  247  F.  40,  p.  178. 

Parker  v.  U.  S.,  203  F.  950,  p.  193. 

Packer  v.  U.  S.,  106  F.  906,  p.  197. 

Patnam  v.  Morgan,  172  F.  450,  p.  202. 

Palliser  v.  U.  S.,  136  U.  S.  267,  p.  217;  268. 

Pappeno  v.  U.  S.,  252  F.  55,  p.  234. 

Partan  v.  U.  S.,  261  F.  515,  p.  241. 

Patterson  v.  U.  S.,  202  F.  208,  p.  280  &  708;  181  F.  970,  p.  280. 

Parkinson  v.  U.  S.,  121  U.  S.  281,  p.  9. 

Parpura  v.  U.  S.,  262  F.  473,  p.  65. 

Parquin  v.  U.  S.,  251  F.  579,  p.  75;  88. 

Paris  v.  U.   S.,  260  F.  529,  p.  88. 

Parish  v.  U.  S.,  100  U.  S.  500,  p.  112. 

Pakas  v.  U.  S.,  240  F.  350,  p.  112. 

Pacey  v.  McKinney,  125  F.  679,  p.  127. 

Palmyra,  25  U.  S..  12  Wheat.  11,  p.  419. 

Pederson  v.  U.  S.,  271  F.  187,  p.  558;  7. 

Pearce  v.  U.  S.,  192  F.  561,  p.  598. 

Peters  v.  U.  S.,  94  F.  127,  p.  603. 

Pettibone  v.  U.  S.,  148  U.  S.  197,  p.  647;  365;   372. 

Perara  v.  U.  S.,  221  F.  213,  p.  163;  235  F.  515,  p.  86. 

People  v.  Noelke,  94  N.  Y.  137,  p.  207. 

Peterson  v.  U.   S.,  255  F.  433,  p.  241. 

Perkins  v.  U.  S.,  228  F.  408,  p.  245;  92. 

Pereles  v.  Weil,  157  F.   419,  p.  46. 

Peterson  v.  U.  S.,  246  F.  118,  p.  95. 

Penn  v.  Fauger,  231  F.  851,  p.  127. 

Peterson  v.  U.  S.,  213  F.  920,  p.  142. 

Pendleton  v.  U.  S.,  216  U.  S.  305. 

Penny  v.  Walker,  64  Me.  430,  p.  156. 

Phillips  v.  U.  S.,  201  F.  260,  p.  606;   264  F.  657,  p.  57. 

Phelan  v.  U.  S.,  249  F.  43,  p.  75. 

Pierriero  v.  U.  S.,  271  F.  912,  p.  509. 

Pinasco  v.  U.  S.,  262  F.  400,  p.  573. 

Pilcher  v.  U.  S.,  113  F.  248,  p.  578. 

Pierce  v.  U.  S.,  40  Sup.  Ct.  Rep.,  205,  p.  182;  257  F.  514,  p.  101. 

Pierre  v.  U.  S.,  275  F.  352,  p.  200. 

Potter  v.  U.  S.,  155  U.  S.  444,  p.  709;   592. 

Pollard  v.  U.  S.,  261  F.  336;    235. 

Post  v.  Murray,  230  F.  773,  p.  210. 

Powers  v.  U.  S.,  223  U.  S.  303,  p.  17. 

Pointer  v.  U.  S.,  151  U.  S.  396,  p.  56. 

Pocahontas  v.  U.  S.,  218  F.  782,  p.  133. 

Pounds  v.  U.  S.,  265  F.  242,  p.  462. 


xxiv  Table  of  Cases. 

Poolen  v.  U.  S.,  127  F.  509,  p.  359. 

Profitt  v.  U.  S.,  264  F.  299,  p.  509. 

Prettyman  v.  U.  S.,  180  F.  30,  p.  598. 

Prdjun  v.  U.  S.,  237  F.  799,  p.  636. 

Price  v.  McGuinness,  269  F.  977,  p.  655. 

Price  v.  U.  S.,  165  U.  S.  308,  p.  170;  237;  218  F.  149,  p.  154;  57;  86. 

Price  v.  Zerbert,  268  F.  72,  p.  95. 

Preyer  v.  U.  S.,  260  F.  157,  p.  275. 

Prolen  v.   U.  S.,  127  F.  509,  p.  57. 

Putnam  v.  U.  S.,  162  U.  S.,  p.  246. 

Q. 

Quinn  v.  Diamond,  72  F.  993,  p.  576. 

R. 
Radin  v.  U.  S.,  189  F.  568,  p.  374;  616. 
Raganshky  v.  U.  S.,  253  F.  643,  p.  200. 
Rakes  v.  U.  S.,  212  U.  S.,  55,  p.  439. 
Randall  v.  State,  42  Tex.  585,  p.  208. 
Rau  v.  U.  S.,  260  F.  131,  p.  570. 
Ray  v.  U.  S.,  265  F.  257,  p.  118. 
Reagan  v.  U.  S.,  202  F.  488,  p.  26. 

Reg  v.  Wood,  5  El.  and  Bl.  49,  85  E.  C.  L.  49,  p.  169. 
Reed  v.  Cushman,  251  F.  872,  p.  234. 
Reed  v.  Thurmond,  269  F.  252,  p.  583. 
Reed  v.  U.  S.,  252  F.  21,  p.  234. 
Reeder  v.  U.  S.,  252  F.  21;   262  F.  36,  p.  353;   411. 
Reichman  v.  Harris,  252  F.  371;  p.  129. 
Reid  v.  Colorado,  187  U.  S.  137,  p.  459. 
Reilley  v.  U.  S.,  106  F.  896,  p.  363. 
Reingar  v.  U.  S.,  172  F.  646;  97  C.  C.  C.  172;   172  F.  646,  Sec.  17  Post. 

p.  39;  55. 
Rex  v.  Baines,  6  Mod.  192,  p.  229;  312. 
Reynolds  v.  U.  S.,  98  U.  S.  145,  p.  97;   167. 
Rhodes  v.  U.  S.,  79  F.  740,  p.  359. 
Rhuberg  v.  U.  S.,  225  F.  865,  p.  181. 
Rice  v.  Ames,  180  U.  S.  371,  p.  28. 
Rich  v.  U.  S.,  271  F.  566,  p.  238. 
Richards  v.  U.  S.,  175  F.  911,  p.  104;    372. 
Richardson  v.  U.  S.,  181  F.  1,  p.  118;  596. 
Riggins  v.  U.  S.,  199  U.  S.  546;  50  Law  Ed.  303,  p.  437. 
Rimmerman  v.  U.  S.,  186  F.  387,  p.  189. 
Rinker  v.  U.   S.,  151  F.  755,  p.  122;    177. 
Ripper  v.  U.  S.,  178  F.  24,  p.  584. 
Rise  v.  U.  S.,  144  F.  374,  p.  112. 
Rizzo  v.  U.  S.,  275  F.  51,  p.  636. 
Roberts  v.  Kendrick,  211  F.  970,  p.  143. 
Roberts  v.  Skoelfield,  20  Fed.  Case  No.   11917,  p.   547. 
Robertson  v.   Baldwin,   165  U.  S.,  281,  p.  19. 

Robertson  v.  U.  S.,  248  F.  874;  126  F.  897;  248  F.  873;  p.  95;  248;  535. 
Robilia  v.  State,  259  F.  101,  p.  76. 
Robins  v.  U.  S.,  229  F.  126,  p.  143;   199. 
Robbins  v.  U.  S.,  229  F.  987,  p.  178. 
Rogers  v.  Desporte,  268  F.  83;  268  F.  308,  p.  95. 
Rooney  v.  U.  S.,  203  F.  928,  p.  653. 
Rose  v.  U.  S.,  227  F.  357,  p.  200. 
Rosen  v.  U.  S.,  237  F.  810;  245  U.  S.  467;  271  F.  651;   161  U.  S.  20;   40 

Law  Ed.   606;    p.   89;    168;    171;    271;    651. 
Rosencrans  v.  U.  S.,  165  U.  S.  257,  p.  163. 


Table  of  Cases.  xxv 

Rosenburg  v.  Pacific  Express  Co.  U.  S.,  Sup.  Ct,  Oct.  Term,  Apr.,  1915; 

p.  575. 
Rosenfield  v.  U.  S.,  202  F.  469,  p.  579. 
Rowan  v.  Randolph,  268  F.  529,  p.  102. 
Rowe  v.  Boyle,  268  F.  809;  p.  48;  199. 
Rumble  v.  U.  S.,  143  F.  772,  p.  189. 
Rumely  v.  McCarthy,  256  F.  565,  p.  48. 
Rupert  v.  U.  S.,  181  F.  87;  181  F.  188;  p.  457. 
Russell  v.  U.  S.,  271  F.  684,  p.  353. 
Rutherford  v.  U.  S.,  258  F.  855,  p.  134. 
Ryan  v.  U.   S.,  216  F.   13;    216  F.   213,  p.  373;    444. 

S. 

Sandberg  v.  U.  S.,  257  F.  643,  p.  410;   257  F.  643,  p.  182. 

Salas  v.  U.  S.,  234  F.  842,  p.  365. 

Sales  v.  U.  S.,  258  F.  596,  p.  177. 

Salla  v.  U.  S.,  104  F.  544,  p.  155. 

Samuels  v.  U.  S.,  232  F.  536,  p.  200. 

Sandels  v.  U.  S.,  213  F.  569,  p.  191. 

Sanden  v.  Morgan,  225  F.  266,  p.  216. 

Sanford  v.  U.  S.,  249  F.  583,  p.  506. 

Savage  v.  Scoville,  171  F.  566,  p.  624. 

Savage  v.  U.  S.,  213  F.  31,  p.  119;  270  F.  15,  p.  123. 

Savins  v.  Petitioner,  131  U.  S.,  267,  p.  300. 

Schaefer  v.  U.  S.,  40  Sup.  Ct.  Rep.,  259,  p.  241. 

Schatz  v.  Winton  Motor  Carriage  Co.,  197  F.  777,  p.  69. 

Schell  v.  U.  S.,  261  F.  593,  p.  382. 

Schick  v.  U.  S.,  195  U.  S.  65,  p.  80. 

Scheinberg  v.  U.  S.,  213  F.  758,  p.  193. 

Schmidt  v.  U.  S„  133  F.  257,  p.  403;    133  F.  257,  p.  282. 

Schraubstadter  v.  U.  S.,  199  F.  568,  p.  621. 

Schulze  v.  U.  S.,  259  F.  189,  p.  182. 

Schwartzberg  v.  U.  S.,  241  F.  348,  p.  52;   241  F.  348;   104,  p.  104. 

Schwartz  v.  U.  S.,  217  F.  866,  p.  32. 

Scoggins  v.  U.  S.,  255  F.  825,  p.  246. 

Scovic  v.  U.  S.,  214  F.  U.  S.  871,  p.  32. 

Scott  V.  U.  S.,  165  F.  172  p.  368,  172  U.  S.  343,  p.  168;  130  F.  429,  p.  604. 

Seebach  v.  U.  S.,  262  F.  885,  p.  241. 

Selbeck  v.  Plattsentsche,  124  F.  18,  p.  92. 

Sears  v.  U.  S.,  264  F.  257,  p.  306;   264  F.  257,  p.  88;   172  U.  S.  343;    43 

Law  Ed.  471,  p.  161. 
Searway  v.  U.  S.,  184  F.  716,  p.  86. 
Seidenbender  v.  Charles,  4  Serg.  and  Rawle,  151    [8  Am.  Dec.  682]   p. 

209. 
Seven  Cases  v.  U.  S.,  Sup.  Ct.,  Oct.  Term,  1915,  p.  626. 
Shaar  v.  U.  S.,  269  F.  26,  p.  665. 
Shaffer  v.  U.  S.,  255  F.  886,  p.  181. 
Sharfsin  v.  U.  S.,  265  F.  916,  p.  618. 
Sharon  v.  Hill,  24  F.  726,  p.  300. 
Sharp  v.  U.  S.,  138  F.  878,  p.  333. 

Shaw  v.  U.  S.,  165  F.  174,  p.  162;   18  F.  348,  p.  163;   180  F.  348,  p.  63. 
Shawnee  v.  U.  S.,  249  F.  583,  p.  506. 
Shea  v.  U.  S.,  251  F.  445,  236  F.  97,  p.  88;   82. 
Shelly  v.  U.  S.,  198  F.  88,  p.  629. 
Shepherd  v.  U.  S.,  160  F.  584,  p.  171;   236  F.  73,  p.  509;   160  F.  584,  p. 

176. 
Sheriden  v.  U.  S.,  236  F.  305,  p.  599. 

Sheriff  v.  Dailey,  221  U.  S-,  280,  p.  548,  Sup.  Ct.,  May  15,  1911,  p.  128. 
Sherman  v.  U.  S.,  268  F.  516,  p.  660. 


xxvi  Table  of  Cases. 

Short  v.  U.  S.,  211  F.  248,  p.  145. 

Showalter  v.  U.  S.,  260  F.  719,  p.  599. 

Sibray  v.  U.  S.,  227  F.  1,  p.  106. 

Sierra  v.  U.  S.,  233  F.  37,  p.  659. 

Silsby  v.  Foote,  14  Howard  218;    14  Law  Ed.  394,  p.   53. 

Silverthorne  Lumber  Co.  v.  U.  S.,  25  U.  S.,  385,  p.  740,  Sup.  Ct.  Rep.,  182, 

p.  64. 
Simmons  v.  State,  61  Miss.  243,  p.  60. 

Simmons  v.  U.  S.,  142  U.  S.  148,  p.  92;   142  U.  S.  148,  p.  22. 
Simpson  v.  U.  S.,  245  F.  278,  p.  636;   229  F.  940,  p.  13;   229  F.  940,  p. 

600;    241   F.  841,  p.   626. 
Sims  v.  U.  S.,  268  F.  234,  p.  75. 
Sinclair  v.  U.  S.,  265  F.  991,  p.  534. 
Siniscolchia  v.  Thomas,   195  F.  701,  p.  116. 
Skuy  v.  U.  S.,  261  F.  316,  p.  76. 

Slaughter  House  Case,  10  Wallace  36;  21  Law  Ed.  394,  p.  432. 
Smith  v.  Crichton,  33  Md.  103,  p.  90. 
Smith  v.  State,  68  Mo.  170,  p.  209. 
Smith  v.  U.  S.,  157  F.  721,  p.  434;   157  F.  722,  p.  92;  231  F.  25,  p.  659; 

208  F.  133,  p.  189;   267  F.  665,  p.  199. 
Sneierson  v.  U.  S.,  264  F.  268,  p.  306;   264  F.  275,  p.  122;   264  F.  268, 

p.  44. 
Snow  v.  U.  S.,  18  Wall.  317,  p.  561. 
Soloman  v.  State,  62  Ala.,  83,  p.  209. 
Sorenson  v.  U.  S.,  143  F.  820,  p.  152;   168  F.  785,  p.  63;   143  F    820,  p. 

152. 
Sotello  v.  U.  S.,  256  F.  721,  p.  154. 
Sparf  v.  U.  S.,  156  U.  S.  51;  39  Law  Ed.  343,  p.  104. 
Sparks  v.  U.  S.,  241  F.  778,  p.  76;    241  F.  777,  p.  201. 
Spear  v.  U.  S.,  228  F.  486,  p.  154;  246  F.  250,  p.  127;  249  F.  571,  p.  201: 

246  F.  250,  p.  201. 
Spur  v.  U.  S.,  87  F.  708,  p.  92;   174  U.  S.  728,  p.  595. 
State  v.  Hunter,   181  Missouri   316;    80   S.  W.   915,  p.  286. 
State  v.  Render,  96  Neb.  548,  p.  60. 
State  v.   Lapage,   57   N.  H.,  245,   p.   87. 
State  v.  Miller,   42  La.  1186,  p.   60. 
State  v.  Martinson,  41  Sup.   Ct.  Rep.,  425,   p.   509. 
State  v.  Nichols,  50  Louisiana  Ann  699;   27,  R.  283,  p.  9,  p.  158. 
State  v.  Palmer,  U.  S.  Sup.  Ct.,  June,  1920,  40  Sup.  Ct.  Rep.,  486,  p.  507. 
State  v.  Siddall,  68  Atl.  634;    103    M.  144,  p.  133. 
State  v.  Stotts,  5  Black,  460,  p.  312. 
State  v.  Winner,  17  Kansas,  298,  p.  264. 
State  v.  Zarafourtis,  150  F.  97,  p.  50. 
Stayton  v.  U.  S.,  213  F.  224,  p.  176. 
Stager  v.  U.  S.,  233  F.  510,  p.  367;  233  F.  510,  p.  664. 
Standard  Fashion  Magazine  Co.,  254  F.  493,  p.  140. 
Standard  Magazine  Co.  254  F.  493,  p.  235. 
Standard  Oil  Co.  v.  U.  S.,  221  U.  S.  1,  p.  139. 
Stanley  v.  U.  S.,  195  F.  896,  p.  264. 
Stan  v.  U.  S.,  153  U.  S.,  616,  p.  93. 
Stanton  v.  U.  S.,  88  F.  253,  p.  343. 
Starr  v.  U.  S.,  153  U.  S.  265,  p.  21. 
State  v.  Bloor,  20  Mont.  574,  p.  295. 
State  v.  Crowson,  98  N.  C.  595,  p.  60. 
State  v.  Fidmont,  35  Iowa,  545,  p.  60. 
State  v.  Foster,  22  R.  I.  163,  p.  236. 
State  v.  Goodenow,  65  Me.,  p.  237. 
State   v.   Herliky,   66   Atl.   643;    102   Me.,   p.   132. 
State  v.  Holland,  U.  S.  Sup.  Ct.,  April  1920,  p.  456. 
Steigman  v.  U.  S.,  220  F.  63,  p.  616. 


Table  of  Cases.  xxvii 

Steiner  Case,  195  F.  300,  p.  31. 

Stetson  v.  U.   S.,  257  F.  689,  p.  510. 

Stewart  v.  Arthur,  267  F.  184,  p.  242. 

Stewart  v.  U.  S.,  236  F.  838,  p.  35. 

Stewart  v.  Wyoming  Cattle  Co.,  128  U.  S.  383,  p.  126. 

Stevens  v.  McClaughry,  207  F.  181,  p.  100. 

Stockton  v.  U.  S.,  205  F.  462,  p.  191. 

Stokes  v.  U.  S.,  157  U.  S.  187,  p.  197;  372. 

Stroughton  v.  Diniick,  3  Blatchf.  556,  p.  424. 

Streepos  v.  U.  S.,  160  U.  S.  128,  p.  197. 

Stout  v.  U.  S.,  227  F.  799,  p.  76;   599. 

Strauder  v.  West  Virginia,  100  U.  S.  303,  p.  438. 

Stretton  v.  Rudy,  176  F.  721,  p.  105. 

Streton  v.  Shaheen,  176  F.  735,  p.  104. 

Stroud  v.  U.  S.,  251  U.  S.  15;  40  Sup.  Ct.  Rep.,  50,  p.  12. 

St.  Clair  v.  U.  S.,  154  U.  S.  134,  38  Law  Ed.  936,  p.,  533. 

Stubbs  v.  U.  S.,  249  F.  571,  p.  201. 

Stuart  v.  U.  S.,  119  F  89,  p.  89. 

Sugar  v.  U.  S.,  252  F.  79,  p.  234;   252  F.  79,  p.  182. 

Susquehana  v.  Cassidy,   247  F.  137,  p.   126. 

Swearington  v.  U.  S.,  161  U.  S.  446,   40  Law  Ed.  756,  p.  172. 

Swepston  v.  U.  S.,  251  F.  205,  p.  35. 

Sylvia  v.  U.  S.,  264  F.  593,  p.  82;   264  F.  593,  p.  89. 

Sugar  v.  U.  S.,  252  F.  79,  p.  234;    252  F.  79,  p.  182. 

Suslak  v.  U.  S.,  213  F.  913,  p.  142;   213  F.  913,  p.  641. 


Talliaferro  v.  U.  S.,  213  F.  25,  p.  88. 

Tat  v.  U.  S.,  260  F.  104,  p.  117. 

Taylor  v.  U.  S.,  45  F.  531;   89  F.  954;   244  F.  321,  p.  136;   364;   526. 

Tennessee  v.  Davis,  100  U.  S.,  257,  p.  89. 

Terre  Haute  v.  Stuble,  109  U.  S.  381,  p.  133. 

Teregno  v.   Shattiack,   265   F.   797,  p.   89. 

Term  v.  Davis,  100  U.  S.  257,  p.  236. 

Terry  v.  U.  S.,  120  F.  486,  p.  19. 

Thaler  v.  U.  S.,  261  F.  746,  p.  235. 

Thatcher  v.  U.  S.,  212  F.  805,  p.  121. 

The  "Antelope"  10  Wheat.  66,  p.  545. 

The  "Chapman"  4   Saw.  501,  p.  422. 

The  "Carondelet"  37  F.  799,  p.  422. 

The  "Daniel  Ball"  10  Wall  557  p.  459. 

The  "Itata"  46  F.  646,  p.  422. 

The  "Mary  Ann"  16  Fed.  Case  No.  9194,  p.  516. 

Thomas  v.  Loney,  134  U.  S.  377,  Law  Ed.  949,  p.  646. 

Thompkins  v.  M.  K.  &  T.,  211  F.  391,  p.  141. 

Thompson  v.  Duehay,  217  F.  484. 

Thompson  v.  State,  92  Ga.  448,  p.  71 

Thompson  v.  U.  S.,  159  F.  801;    202  F.  401;   256  F.  616,  p.   168;    382; 

607. 
Thompson  v.  Utah,  170  U.  S.  349;   180  U.  S.  343,  p.  19-    79. 
Tiader  v.  U.  S.,  260  F.  923,  p.  510. 

Tillingast  v.  Richards,  233  F.  710;    225  F.  226,  p.  365;    588. 
Tingle  v.  U.  S.,  87  F.  320,  p.  197. 
Tjosevig  v.  Boyle,  258  F.  813,  p.  199. 

Todd  v.  U.  S.,  158  U.  S.  278;  39  Law  Ed.  982;   221  F.  205;  p.  192;  302. 
Toledo  Newspaper  Co.  v.  U.  S.,  237  F.  986,  p.  35. 
Trafton  v.  U.  S.,  147  F.  513,  p.  98. 
Trent  v.  U.  S.,  228  F.  648,  p.  210;   238. 
Tubbs  v.  U.  S.,  94  F.  356,  p.  171. 


xxviii  Table  of  Cases. 

Tucker  v.  U.  S.,  196  F.  260;  212  P.  569;  224  Fed.  833,  p.  120;   132;  201. 

Tucker  v.  Williamson,  229  F.  201,  p.  510. 

Tugendhaft  v.  U.  S.,  263  F.  562,  p.  617. 

Turner  v.  U.  S.,  238  F.  194;   272  F.  112;   p.  35;    533. 

Twining  v.  U.  S.,  141  F.  41,  p.  604. 

Tyomies  v.  U.  S.,  211  F.  389,  p.   174. 

Tyomies  Publishing  Co.  v.  U.  S.,  211  F.  386,  p.  170. 

U. 

U.  S.  v.  Abrams,  230  F.  313;   18  F.  823,  p.  5;   64;   269;   665. 

U.  S.  v.  Aczel,  et  al,  219  F.  917,  p.  432. 

U.  S.  v.  Adams  Express  Co.,  229  U.  S.  381;    119   F.  240,  p.   138;    574. 

U.  S.  v.  Adler,  49  F.  733,  p.  359. 

U.  S.  v.  Ah  Kung,  243  F.  762,  p.  509. 

U.  S.  v.  Ah  Won,  97  F.  494,  p.  343. 

U.  S.  v.  Albert,  45  F.  552,  p.  250;    348. 

U.  S.  v.  Allen,  38  F.  736;    47  F.  696,  p.  604;    575. 

U.  S.  v.  Alexis  Club,  98  F.  725,  p.  571. 

IT.  S.  v.  Allis,  73  F.  165,  p.  603. 

U.   S.   v.   Almedia,  24   Fed.   Case  No.   144;    33,  p.   550. 

U.  S.  v.  Amann,  24  Fed.  Case,  No.  14438,  p.  580. 

U    S.  v.  Ambrose,  2  F.  764,  p.  355. 

U.  S.  v.  American,  275  F.  939,  p.  138. 

U.  S.  v.  American  Laboratories,  222  F.  104;  p.  201;  627. 

U.  S.  v.  American  Tobacco  Co.,  221  U.  S.  106;   177  F.  774,  p.  106;   109; 

140. 
U.  S.  v.  Ames,  95  F.  453,  p.  207. 
U.  S.  v.  Ammerman,  176  F.  636,  p.  282. 
U.  S.  v.  Anderson,  231  F.  546;  68  F.  696,  p.  117;  188. 
U.  S.  v.  Anthony,  24  Fed.  Case  No.  14459,  p.  236. 
U.  S.  v.  Arjona,  120  U.  S.  479,  p.   256. 
U.  S.  v.  Armstrong,  59  F.  568,  p.  301. 
U.  S.  v.  Ashton,  24  Fed.  Case  No.  14470,  p.  549. 
U.  S.  v.  Atlantic  Journal  Co.  185  F.  656,  p.  346;    373. 
U   S.  v.  Ault,  263  F.  800,  p.  365. 
U.  S.  v.  Auto,  279  F.  891,  p.  506. 
IT.  S.  v.  Aylward,  24  Fed  Case  No.  14484,  p.  268. 
U.  S.  v.  Brace,  144   F.   869;    149   F.   874;    p.  287;    371. 
U.  S.  v.  Bradford,  53  F.  542;   148  F.  413;  p.  351;   371. 
U.  S.  v.  Brand,  229  F.  847,  p.   635. 
IT.  S.  v.  Braun,  158  F.  456,  p.  124. 
IT.  S.  v.  Brasley,  268  F.  59,  p.   6. 
U.  S.  v.  Bray,  113  F.  1009,  p.  576. 
IT.  S.  v.  Breeding,  207  F.  645,  p.  36. 
U.  S.  v.  Breese,  73  F.  765;   172  F.  765,  p.  37;   38. 
IT.  S.  v.  Bressi,  208  F.   369,  p.  404. 
U.  S.  v.  Bridgeman,  140  F.  577,  p.  373. 
U.  S.  v.  Brierback,  245  F.  204,  p.  237. 

U.  S.  v.  Briton,  108  U.  S.  192;   170  U.  S.  655;   p.  236;   372;   603. 
IT.   S.  v.  Brockley,   266   F.   1001,  p.   506. 
U.  S.  v.  Brod,  176  F.  165,  p.  59. 
U.  S.  v.  Broughton,  213  F.  345,  p.  523. 
IT    S.  v.  Bronn,  119  F.  482;    224  F.  135;    224  F.  135;    126   F.   766;    43 

F.  135;    242  F.   983;    24  Fed.   Case,  14656,  p.  184;    234;    392;    471; 

512;    630;    784. 
IT    S.  v.  Buchanan,  255  F.  915,  p.  51. 
IT    S.  v.  Buckingham,  261  F.  418,  p.  578. 
IT.  S.  v.  Buntin,  10  F.  30,  p.  440. 
U.   S.  v.  Bunting,  82  F.  883,  p.  342;    344. 


Table  of  Cases.  xxix 

U.  S.  v.  Burdick.  211  F.  493;   p.  17. 
U.  S.  v.  Burke,  218  F.  83,  p.  364;   373. 
U.  S.  v.  Burck,  226  F.  974,  p.  635. 
U.   S.  v.  Burleson,  41  Sup.  Ct.  Rep.,  352,  p.   202. 
U.  S.  v.  Burley,  14  Blatch.  U.  S.  91,  p.  401. 
U.  S.  v.  Burnell,  75  F.  824,  p.  186. 
U.  S.  v.  Burns,  270  F.  601,  p.  506. 

U.  S.  v.  Burr,  4  Cranch.  469;   1  Burr's  Trial  14;   2nd  Burr's  Trial  402; 
.      Fed.  Case  252;    p.  408. 

U.  S.  v.  Burton,  131  F.  552;  202  U.  S.  344,  p.  327. 
U.  S.  v.  Butler,  1  Hughes,  457,  p.  438. 
U.   S.  v.   Bush,  269  F.   455,  p.   5. 
U.  S.  v.  Byrne,  44  F.  188,  p.  163. 
U.  S.  v.  Baker,  5  Blatch.  6;  24  Fed.  Case,  962;  247  F.  124-   243  F.  746; 

p.    56;    234;    365;    741. 
U.  S.  v.  Barrels  of  Spirits,  2  Abbott  305,  p.  577. 
U.   S.   v.  Bamaby,   51  F.   20,  p.   536;    542. 
U.  S.  v.  Bayer,  4  Dillon,  407,  Fed.  Case  No.  14547;   p.  615. 
U.  S.  v.  Barton,  10  F.  874,  p.  604. 
U.  S.  v.  Bartlett,  106  F.  884,  p.  605. 
U.  S.  v.  Bachman,  246  F.  1010,  p.  94;    199. 
U.  S.  v.  Balte,  154  F.  540,  p.  530. 
U.  S.  v.  Barnett,  111  F.  369,  p.  251;   254. 

U.  S.  v.  Barney,  3  Am.  Law,  128;    5  Blatchf.  294,  p.   156;    346. 
U.  S.  v.  Bayard,  16  F.  376,  p.  57. 
U.  S.  v.  Ballard,  3  McClean,  U.  S.  469,  2nd.  Vol.  5  Fed.  Stat.  358;    US 

F.   757;    p.   136;    350. 
U.  S.  v.  Barnon,  221  F.  140;  U.  S.  Sup.  Ct.,  Oct.,  1915,  p.  353. 
U.  S.  v.  Barnhardt,  33  F.  459;   22  F.  290;   p.  11;   342. 
U.  S.  v.  Barrett,  65  F.  62;    187  F.  378;    p.  31;    363. 
U.  S.  v.  Bailey,  9  Peters  238,    47  F.  117;    p.  213;    281. 
U.  S.  v.  Babcock,  4  McLean,  113,  p.  278. 
U.  S.  v.  Barber,  140  U.  S.  177,  p.  372. 
U.  S.  v.  Ball,  163  U  S.  662,  p.  4. 
U.  S.  v.  Bardick,  211  F.  493,  p.  17. 
"U.  S.  v.  Baer,  6  F.  42,  p.  277. 
U    S.  v.  Barton,  10  F.  873,  p.  281. 
U.  S.  v.  Bathgart,  U.  S.  Sup.  Ct.,  Mar.,  1918,  p.  432. 
U.  S.  v.  Baumert,  179  F.  735,  p.  45. 
U.  S.  v.  Bell,  81  F.  830;   p.  17;    59. 
U.  S.  v.  Beebe,  149  F.  618,  p.  261. 
U.  S.  v.  Bejandio,  1  Woods  294,  p.  269. 
U.  S.  v.  Berkhardt,  31  F.  141,  p.  285. 
U.  S.  v.  Bennett,  16  Blatch.  342;    3  Hughes  466,  24  Fed.  Case  14574: 

p.  174;    547. 
U.   S.  v.  Beltaline,   1st.  Woods   654,  p.   664. 
U.  S.  v.  Benedict,  165  F.  221,  p.  169;    172. 
U.  S.  v.  Bernstein,  267  F.  295,  p.  4. 
U.  S.  v.  Bickford,  4  Blatch,  337,  p.   347. 
U.  S.  v.  Bicksler,  1  Mackey,  341,  p.  267;    271. 
U.  S.  V.  Biggs,  157  F.  264;   211  U.   S.  597,  p.   198;    372. 
U.  S.  v.  Binder,  253  F.  978,  p.  182. 
U.  S.  v.  Birdsall,  195  F.  980;    206  F.  818,  p.  307. 
U.  S.  v.  Bettinger  (Mo.),  15  Am.  Law  U.  S.  49;  24  Fed.  Case  No.  1959S, 

p.  299. 
U.  S.  v.  Betty,  155  F.  938;    208  U.  S.  393,  52  Law  Ed.  504;    208  U.   S. 

150,  p.  632. 
U.  S.  v.  Bixby,  10  Bis  208,  p.  320. 
U    S.  v.  Blaisdell,  3  Bennett  32,  p.  111. 
U.  S.  v.  Blab,  99  U.   S.  228,  p.  571. 


xxx  Table  of  Cases. 

U.  S.  v.  Blakeman,  251  F.  306,  p.  58;    182. 

U.  S.  v.  Blenholm.  208  F.  492,  p.  175. 

U.   S.   v.   Block,   262   F.   205,   p.   11. 

U.  S.  v.  Bopp.  232  F.  177;    237  F.  793;   230  F.  723;    232  F.  177;   237   F. 

283;    p.  45;    232;    423;    366. 
U.  S.  v.  Boekman,  176  F.  382,  p.  622. 
U.    S.   v.    Boggs,    31   F.    337,   p.   251. 
U.  S.  v.  Bolles,  209  F.  682,  p.  40. 
U.  S.  v.   Booth,   148  F.   112,  p.  328. 
U.  S.  v.  Borden,  24  Fed.  Case  1202,  p.  551. 
U.  S.  v.  Boren,  144  F.  801,  p.  287. 
U.  S.  v.  Borkowski,  268  F.  408,  p.  508. 
U.  S.  v.  Bountin,  251  F.  313,  p.  182. 
U.  S.  v.  Boyer,  4  Dill.  407,    85  F.  425;    p.  331;    368. 
U.    S.    v.    Boyle,    40    F.    664,    p.    187. 
U.  S.  v.  Boumert,  179  F.  735,  p.  140. 
U.  S.  v.  Bowman,  5  Pac.  Rep.,  333,  p.  154. 
U.  S.  v.  Bozeman,  236  F.  432,  235  U.  S.  696,  p.  641. 
U.  S.  v.  Bozer,  4  Dill.  407;  5  F.  681;  7  F.  715;  p.  615. 
U.   S.  v.  Box,   190  F.   731,  p.   210. 
U.  S.  v.  Bryant,  257  F.  378;   245  F.  682,  p.  18;    113. 
U.   S.  v.  Cadwaller,  59  F.  679,  p.  9. 
U.  S.  v.  Carney,  228  F.  168,  p.  510. 
U.  S.  v.  Caminata,  194  F.  903,  p.  629. 
U.  S.  v.  Campbell,  16  F.  235;   179  F.  762,  p.  48;    150. 
U.  S.  v.  Cardish,  14  F.  640,  p.  541. 
U.  S.  v.  Carlin,  259  F.  904;   259,  904,  p.  365;   365. 
U.  S.  v.  Carll,  105  U.  S.  611,  p.  262. 
U.  S.  v.  Carlovitz,  80  F.  852,  p.  216. 
U.   S.  v.  Carpenter,   151  F.  216,  p.  99. 
U.   S.  v.  Carter,  84  F.  622,  p.  527. 
U.  S.  v.  Case,  49  F.  270;    49  F.  270,  p.  216;    215. 
U.  S.  v.  Case,  8  Blatchf.  250,  p.  28. 
U.  S.  v.  Cases  of  Molasses,  174  F.  325,  p.  622. 
U.  S.  v.  Cases  of  Syrup,  172  F.  781,  p.  623. 
U.  S.  v.  Cases  of  Tomato  Catsup,  166  F.;   773,  p.  623. 
U.  S.  v.  Casey,  247  F.  362,  p.  57;   411. 
U    S.  v.  Cassey,  247  F.  362,  p.  234. 
U.  S.  v.  Cassidy,  67  F.  698,  p.  368;   353;   156. 
U.  S.  v.  Cathcart,  1  Bond,  556;   25  Fed.  Case,  344,  p.  408. 
U.  S.  v.  Cautinie,  212  F.  925,  p.  166. 
U.  S.  v.  Chakraberty,  244  F.  287,  p.  243. 
U.  S.  v.  Charter,  227  F.  331;   227  F.  331,  p.  58;   510. 
U.  S.  v.  Chase,  135  U.  S.  117,  p.  177. 
U.  S.  v.  Chevallier,  107  F.  434,  p.  573. 
U.  S.  v.  Chennault,  230  F.  942;   p.  56;  43;   248. 
U.  S.  v.  Chevrolet,  267  F.  1021,  p.  506. 
U.  S.  v.  Christopherson,  261  F.  225,  p.  360. 
U.  S.  v.  Ching  Fong,  192  F.  485,  p.  115. 
U.  S.  v.  Clair,  2  F.  55,  p.  570, 
U.  S.  v.  Clark,  1  Gall.  497;   46  F.  633;  164  F.  75;   43  F.  574,  p.  560;   369; 

177;   28. 
U.  S.  v.  Clarion,  272  F.  985,  p.  13. 
IT.  S.  v.  Claypool,  14  F.  127,  p.  156. 
U.  S.  v.  Clifford,  104  F.  296,  p.  171. 
U.  S.  v.  Cobban,  134  F.  290,  p.  287. 
U.  S.  v.  Coffin,  1  Sumn.  394,  p.  551. 
I  .  S.  v.  Coggin,  3  F.  492,  p.  355. 

U    S.  v.  Cohen  Grocery  Co.,  41  Supt.  Ct.  300,  April,  1921,  p.  643. 
U.  S.  v.  Cohen,  264  F.  218,  p.  245. 


Table  of  Cases.  xxxi 

U.  S.  v.  Cohn,  268  F.  423,  p.  508. 

U.  S.  v.  Colby,  265  F.  998,  p.  4. 

U.  S.  v.  Cole,  153  F.  801;  5  McLean,  513;  25  Fed.  Case  No.  14832,  p.  522. 

U.  S.  v.  Colgate,  253  F.  522,  p.,  140,  250  U.  S.  300,  p.  141. 

U.  S.  v.  Collins,  264  F.  145;  380;  250  F.  869,  p.  475;  476;  13. 

U.  S.  v.  Company,  242  F.  536,  p.  454. 

U.  S.  v.  Comstock,  161  F.  644,  p.  612. 

U.  S.  v.  Comyns,  U.  S.  Supt.  Ct.,  Jan.,  1919,  p.  234;    199. 

U.  S.  v.  Conners,  111  F.  732;   111  F.  734,  p.  251;   260. 

U.  S.  v.  Conrad,  59  F.  458,  p.  212. 

U.  S.  v.  Coombs,  12  Peters,  72;   76,  p.  553;    150. 

U.  S.  v.  Coppersmith,  4  F.  198,  p.  224. 

U.  S.  v.  Corbett,  162  F.   687,  p.   605. 

U    S.  v.  Corbet,  215  U.  S.  233,  p.  602. 

U  S.  v.  Corbin,  11  F.  238,  p.  247. 

U.  S.  v.  Corporation,  1,  125  F.  94,  p.  123. 

U.  S.  v.  Corrie  Brun  Co.  Cases,  686;  25  Fed.  Case  No.  14869,  p.  512;  658. 

U.  S.  v.  Cota,  17  F.  734,  p.  576. 

U.  S.  v.  Cover,  46  F.  284,  p.  292. 

U.  S.  v.  Cowell,  243  F.  730,  p.  140. 

U.  S.  v.  Craig,  266  F.  230,  p.  34. 

U.  S.  v.  Crates,  208  F.  950,  p.  625. 

U.  S.  v.  Crawford,  25  Fed.  Case  No.   14890,  p.   549. 

U  S.  v.  Crecilius,  34  F.  30;   34  F.  32,  p.  289;   223. 

U.  S.  v.  Crndol,  233  F.  331,  p.  281. 

U.  S.  v.  Crossen,  264  F.  459,  p.  508. 

U.  S.  v.  Cruickshank,  92  U.  S.  542;  557;  23  Law  Ed.  588,  p.  431;  428;  19. 

U.  S.  v.  Cuddy,  39  F.  696,  p.  285. 

U.   S.  v.  Curley,  122  F.  738,  p.  371. 

U.  S.  v.  Curry,  206  F.  322,  p.  176. 

U.  S.  v.  Curtain,  43  F.  433,  p.  351. 

U.  S.  v.  Curtis,  12  F.  824;  107  U.  S.  671;  229  F.  288,  p.  324;  279;  10. 

U.  S.  v.  Cushman,  1  Law  414,  p.  578. 

U.  S.  v.  Cutler,  1  Curt.  501;   25  Fed.  Case  No.  14910,  p.  546. 

U    S.  v.  Dale,  230  F.  759,  p.  200. 

U.  S.  v.  Darcy,  243  F.  739,  p.  509. 

U.  S.  v.  Darnaud,  3  Wall.  Jr.  143,  p.  512. 

U.  S.  v.  Daubner,  17  F.  793,  p.  358. 

U.  S.  v.  Davenport,  266  F.  425,  p.  52. 

U.  S.  v.  Davidson,  244  F.  523,  p.  178;   188. 

U.   S.  v.  Davin,  189  F.  244,  p.  642. 

U.   S.   v.   Davis,   103   F.   458;    37   F.   468;    38   F.   326;    103   F.  457;    U.   S. 

Supt.  Ct.,  April,  1917,  p.  22;  34;   187;  320;   349;   571. 
U.  S.  v.  Dean,  230  F.  957,  p.  117. 
U.  S.  v.  Deaver,  14  F.  595,  p.  314. 
U.  S.  v.  Debs,  63  F.  436,  p.  373. 
U.  S.  v.  DeBolt,  253  F.  78,  p.  143. 
U.  S.  v.  DeGroa,  30  F.  764,  p.  294. 
U.  S.  v.  Delaney,  55  F.  475,  p.  163. 
U.  S.  v.  Dembroski,  252  F.  894,  p.  58. 
U.  S.  v.  Dempsey,  188  F.  450,  p.  170. 
U.  S.  v.  DeMott,  3  F.  478,  p.  156. 
U.  S.  v.  Denker,  255  F.  339,  p.  509. 

U.  S.  v.  Dennis  Quiver,  U.  S.  Sup.  Ct.,  Oct.  Term,  1915  p.  564. 
U.  S.  v.  Dennee,  3  Wood.    (U.  S.)    39,  p.  287. 
U.  S.  v.  DePont,  188  F.  127,  p.  139. 
U.  S.  v.  Deviline,  6  Blatchf.  71  p.  571. 
U.  S.  v.  Dexter,  154  F.  890,  p.  197. 
U.  S.  v.  Dewalt,  128  U.  S.  393,  p.  9. 
U.  S.  v.  Dietrich,  126  F.  670;    126  F.  664;   126  F.  676;    126  F.  671;    p. 

56;   236;   371. 


xxxii  Table  of  Cases. 


U.  S.  v.  Dimmick,  112  F.  350,  p.  317. 

U.  S.  v.  Direct  Sales  Co.,  252  F.  882,  p.  625. 

U.  S.  v.  Dodge,  70  F.  235,  p.  184. 

U.  S.  v.  Dodson,  268  F.  397,  p.  508. 

U.  S.  v.  Doremus,  246  F.  958;   U.  S.  Sup.  Ct.,  Mar.  3,  1919;  p.  509. 

U.  S.  v.  Dorsey,  40  F.  752,  p.  168. 

U.   S.  v.  Douglas,  33  F.  381,  p.  217. 

U.  S.  v.  Dougherty,  101  F.  439,  p.  584. 

U.    S.   v.   Doughty,   25   Fed.   Case  No.    14987;    p.   549. 

U    S.  v.  Driggs,  125  F.  520,  p.  326. 

U    S.  v.  Driscoll,  1  Lowell,  303,  p.  166. 

U.  S.  v.  Durant,  46  F.  753,  p.  187. 

U.  S.  v.  Dwight  Mfg.  Co.,  210  F.  74  p.  116. 

U    S.  v.  Dumas,  149  U.  S.  283;  p.  216. 

U.  S.  v.  Dunkley,  235  F.  1000,  p.  617. 

U.  S.  v.  Dupont,  176  F.  823,  p.  282. 

U.  S.  v.  Eastman,  252  F.  223,  p.  182. 

U.  S.  v.  Eaton,  144  U.  S.  688;  36  Law  Ed.  591;  p.  236;  588. 

U.  S.  v.  Eberhart,  127  F.  254;   127  F.  252,  p.  429;   520. 

U.  S.  v.  Edwards,  43  F.  57,  p.  285. 

U.  S.  v.  Egan,  30  F.  608,  p.  89. 

U.  S.  v.  Elliott,  51  F.  807,  p.  187. 

U.  S.  v.  Eman,  271  F.  353,  p.  241. 

U.  S.  v.  Eno,  155  U.  S.  89;   39  Law  Ed.  80,  p.  648. 

U.  S.  v.  Erie  Ry.  Co.,  235  U.  S.  513,  p.  231. 

U.  S.  v.  Ethridge,  140  F.  376,  p.  197. 

U.  S.  v.  Evans,  153  U.  S.  584;    19  F.  912,  p.  192;    287. 

U.  S.  v.  Fabata,  253  F.  586,  p.  102. 

U.  S.  v.  Falkner,  21  F.  624,  p.  163. 

U.  S.  v.  Farnham,  127  F.  478;   p.  352;    393;    784. 

U.  S.  v.  Farmer,  218  F.  929,  p.  193. 

U.  S.  v.  Fenton,  268  F.  221,  p.  506. 

U.  S.  v.  Field,  16  F.  779,  p.  224. 

U.  S.  v.  First  Nat.  Bank  of  Anamouse,  190  F.  336,  p.  452. 

U.  S.  v.  Fischer,  245  F.  477,  p.  241. 

U.  S.  v.  Fisk,  24  F.  585;  Fed.  Statutes,  150,  p.  604. 

U.  S.  v.  Fitzgerald,  91  F.  374,  p.  259. 

U.  S.  v.  Flashpiller,  205  F.  1006,  p.  641. 

U    S.  v.  Fleming,  18  F.  907,  p.  193. 

U.   S.  v.  Forbes,  25  Fed.  Case  No.   15129,  p.  549;    550. 

U.  S.  v.  Ford,  99  U.  S.  594;   50  F.  467,  p.  18;   587. 

U.  S.  v.  Fortman,  268  F.  873,  p.  573. 

U.  S.  v.  Forty  Barrels,  U.  S.  Sup.  Ct.,  May,  1916,  p.  625. 

U.  S.  v.  Foster,  183  F.  626;  211  F.  206,  p.  80;   373. 

U    S.   v.  Four  Hundred,  etc.,   193  F.  589,  p.   621. 

U    S.  v.  Fout,  123  F.  625.  p.  345. 

U.  S.  v.  Franklin,  174  F.  161,  p.  352. 

U.   S.  v.  Franks,  189  F.  195,  p.  625. 

U.  S.  v.  Freedman,  268  F.  655,  p.  89;   366. 

U    S.  v.  Freeman,  U.  S.  Sup.  Ct.,  Oct.,  1915,  p.  454. 

U.  S.  v.  French,  243  F.  785;   57  F.  382,  p.  604. 

U    S.  v.  Fricke,  259  F.  673,  p.  408. 

U    S.  v.  Friedburg,  233  F.  313,  p.   5;    7;    63. 

U.  S.  v.  Friedman,  224  F.  277;   224  F.  276,  p.  471;   510. 

U    S.  v.  Frisbie,  28  F.  808,  p.  358. 

U.  S.  v.  Fuld  Store  Co.,  262  F.  836,  p.  456. 

U    S.  v.  Fulkerson,  74  F.   619,  p.  212. 

U.  S.  v.  Gaag,  237  F.  730,  p.  239. 

U.  S.  v.  Gallant,  177  F.  281,  p.  581. 

U.  S.  v.  Galleanni,  245  F.  977,  p.  120;    365. 


Table  of  Cases..  xxxiii 

TJ.  S.  v.  1412  Gallons  of  Spirits,  10  Blatch.  428,  p.  580. 

U.  S.  v.  Garcelon,  82  F.  611,  p.  279. 

U.  S.  v.  Garretson,  42  F.  22,  p.  384. 

U.  S.  v.  Gee,  45  F.  194,  p.  185. 

U.  S.  v.  George,  228  U.  S.  14,  p.  280. 

U.  S.  v.  Germane,  90  U.  S.  508,  p.  313;  323. 

U.  S.  v.  Gibson,  188  F.  396;  188  F.  397;  47  F.  833,  p.  102;  119;  143;  374. 

U.   S.  v.  Gilbert,  25   Fed.  Cases  No.  15205;    2   Sumn.   19;    p.  226;    545. 

U.  S.  v.  Gin,  253  F.  210,  p.  117. 

U.  S.  v.  Givings,  25  Fed.  Case  1331,  p.  551. 

U.  S.  v.  Glasener,  18  F.  566,  p.  347. 

U.  S.  v.  Goldman,  207  F.  1002,  p.  191. 

U.  S.  v.  Goodsay,  164  F.  157,  p.  371. 

U.  S.  v.  Gordon,  235  F.  423,  p.  35. 

U    S.  v.  Gowdy,  37  F.  383;   37  F.  332;  p.  342;  359. 

TJ.  S.  v.  Gouled,  253  F.  239;   242  F.  64,  p.  123. 

U.  S.  v.  Gradwell,  U.  S.  Sup.  Ct.,  April  1917;   234  F.  446;   227  F.  243; 

p.  77;   365;  432. 
U.  S.  v.  Grassin,  3  Washington,  65;  26  Fed.  Case,  10,  p.  420. 
U    S.  v.  Greathouse,  26  Fed.  Case  818,  p.  408. 
U.  S.  v.  Green,  136  F.  641;    146  F.  804;    154  F.  402;   115  F.   343;    36  F. 

618;   p.  19;   154;   371. 
U.  S.  v.  Green,  et  al.,  146  F.  778;  136  F.  618;  p.  310;  375. 
TJ.  S.  v.  Greiner,  26  Fed.  Case  15262,  p.  408. 
U.  S.  v.  Griswold,  24  F.  361;   30  F.  604;  30  F.  762;  P.  358. 
U.  S.  v.  Grodson,  164  F.  157,  p.  613. 
U.  S.  v.  Gudger,  U.  S.  Sup.  Ct.,  Apr.,  1919,  p.  476. 
U.  S.  v.  Guiteau,  1  Mackey,  498,  p.  533. 
U.  S.  v.  Guthrie,  171  F.  528,  p.  582. 
U.  S.  v.  Gwynne,  209  F.  993;  209  F.  994,  p.  640. 
U.  S.  v.  Haas,  et  al.,  163  F.  908,  p.  369;  333. 
U.  S.  v.  Haines,  26  Fed.  Case  No.  15275,  p.  550. 
U.  S.  v.  Hall,  248  F.  53;  F.  353;  150;  44  F.  864,  131  U.  S.  50,  76  F.  5G6; 

206  F.  485,  p.  184;   286;   340;   168;   156;  22. 
U.  S.  v.  Hallowell,  271  F.  795,  p.  391;  7. 
U.  S.  v.  Hallock  154  U.  S.  537,  p.  422. 
U   S.  v.  Hamilton,  9  F.  442,  57  F.  569,  p.  163;   402. 
U.  S.  v.  Hammers,  241  F.  542,  p.  509. 
U.  S.  v.  Hammon,  68  F.  472,  p.  97. 
TJ.  S.  v.  Hammond,  246  F.  40,  p.  385. 

U.  S.  v.  Hand,  6  McLean,  274;  26  Fed.  Case  No.  15296,  p.  552. 
U.  S.  v.  Hansee,  79  F.  303,  p.  348. 
U    S.  v.  Hardison,  135  F.  419,  p.  281. 
U.  S.  v.  Hardy,  256  F.  284,  p.  113. 
U.  S.  v.  Harned,  43  F.  376,  p.  313. 
U.  S.  v.  Hare,  2  Wharton  Criminal  Case,  283,  26  Federal  Case,  148,  p. 

154. 
U.  S.  v.  Hargrave,  26  Fed.  Case,  No.  15306,  p.  268. 
U.  S.  v.  Harmison,  3  Saw.,  556,  p.  97. 
U.  S.  v.  Harmon,  45  F.  418,  p.  174. 
TJ.  S.  v.  Harper,  33  F.  480;  474;   475;  p.  604;   597. 
U.  S.  v.  Harris,   122  F.   551,  106  U.   S.  629,  27   Law  Ed.  290,  p.    177; 

432;  438. 
U,  S.  v.  Hart,  Pet.  C.  C,  390  S.  C.  3,  Criminal  Case,  304,  p.  156. 
U.  S.  v.  Hart,  131  F.  866;   140  F.  843;   146  F.  202;   214  F.  655;   216  F. 

374,  p.   659;    357;    67. 
U.  S.  v.  Hartman,  65  F.  490,  p.  359. 
U.  S.  v.  Harvey,  8  Law  Rep.  77,  p.  156. 
TJ.  S.  v.  Haskell,  26  Fed.  Case,  207,  p.  551. 
U.  S.  v.  Healey,  202  F.  349,  p.  160. 


xxxiv  Table  of   Cases. 

U.  S.  v.  Hearing,  26  F.  744,  p.  285;   281. 

U.  S.  v.  Heike,  175  F.  852,  p.  14. 

U.  S.  v.  Heinze,   177  F.   770;    183  F.  907;    218  U.   S.  542;    161   F.   425; 

532,  p.  109;   601;   595;   596. 
U.  S.  v.  Henkel,  185  F.  553,  p.  33. 
U.  S.  v.  Herald,  159  F.  296,  p.  175. 

U.  S.  v.  Hess,  124  U.  S.  483;   124  U.  S.  483;   p.  372;   197. 
U.  S.  v.  Hewecker,  79  F.  59,  p.  528. 
U.  S.  v.  Hicks,  256  F.  707,  p.  235. 
U.   S.  v.  Higgerson,  46  Fed.  Rep.  750,  p.  563. 
U.  S.  v.  Higgins,  194  F.  539,  p.  186. 
U.  S.  v.  Hilberry,  29  F.  705,  p.  166. 

U.  S.  v.  Hill,  263  F.  812,  U.  S.  Sup.,  Jan.,  1919,  p.  68;   476. 
U.  S.  v.  Hillegrass,  176  F.  444,  p.  606. 
U.  S.  v.  Hipolite  Egg  Co.,  220  U.  S.  45,  p.  624. 
U.  S.  v.  Hirsch,  100  U.  S.  33,  p.  371. 
U.  S.  v.  Hodges,  26  Fed.  Case,  332,  p.  408. 
U.  S.  v.  Hoke,  187  F.  992,  p.  639. 
U.  S.  v.  Hollis,  246  F.  611,  p.  140. 
U.  S.  v.  Holmes,  104  F.  884,  p.  539. 
U.  S.  v.  Holt,  270  F.  639,  p.  508. 

U.  S.  v.  Holte,  236  U.  S.  140;   236  U.  S.  140,  p.  364;   373;   640. 
U.  S.  v.  Hoos,  232  F.  328,  p.  599. 
U.  S.  v.  Hopkins,  199  F.  649;  26  F.  443,  p.  620;  268. 
U.  S.  v.  Horman,  118  F.  780,  p.  192. 
U,  S.  v.  Horner,  44  F.  677,  p.  213. 

U.  S.  v.  Houghton,  14  F.  544;   14  F.  544;   p.  615;  341. 
U.  S.  v.  Howard,  3  Wash.  430,  26  Fed.  Case,  390—15404;    132  F.  325; 

37  F.  666,  p.  446;   557;   287;    278. 
U.  S.  v.  Howell,  64  F.  110,  p.  263. 
U.  S.  v.  Hoxie,  26  Fed.  Case,  397,  p.  408. 
U.   S.  v.  Hoyt,  255  F.  927,  p.  510. 
U.  S.  v.  Hudson,  7  Cranch.  32,  p.  236. 

U.  S.  v.  Huff,  13  F.  630;  206  F.  700;   13  F.  639,  p.  548;   293;   29. 
U.  S.  v.  Hughes,  70  F.  972,  p.  422. 
U.  S.  v.  Huilsman,  94  F.  486,  p.  166. 
U.  S.  v.  Hughitt,  45  F.  47,  p.  604. 
U.   S.  v.  Hull,  14  F.  324,  p.  355. 
U.  S.  v.  Hunt,  166  U.  S.  1063,  p.  50. 
U.  S.  v.  Hutchings,  26  Fed.  Case,  440,  p.  556. 
U.  S.  v.  Hyde,  132  F.  545,  p.  128. 
U.  S.  v.  Hydes,  267  F.  470,  p.  506. 
U.  S.  v.  Inabet,  41  F.  130,  p.  167. 

U.  S.  v.  Ingham,  97  F.  935;   49  F.  155,  p.  332;   356;   375. 
U.  S.  v.  Innes,  218  F.  705,  p.  117. 
U    S.  v.  Insley,  54  F.  221,  p.  50. 

U.  S.  v.  International  Harvester  Co.,  214  F.  987,  p.  138. 
U.  S.  v.  Irvine,  56  F.  375,  p.  212. 
U.  S.  v.  Irwine,  5  McLean,  178,  p.  339. 
U.  S.  v.  Jackson,  1  Hughes,  531;  2  F.  502;  p.  572;   615. 
U.  S.  v.  Jacob,  254  F.  741,  p.  242. 
U.  S.  v.  Jacobson,  257  F.  760;   26  Fed.  Case,  No.  16461;    p.  6;   51;   102; 

555. 
U.  S.  v.  James,  256  F.  102,  p.  476. 
U.  S.  v.  Janowiz,  42  Sup.  Ct.  Rep.,  40,  p.  257. 
U.  S.  v.  Jarvis,  59  F.  357,  p.  187. 
U.  S.  v.  Jasick,  252  F.  931,  p.  200. 
IT   S.  v.  Jenks,  258  F.  763,  264  F.  697;  p.  43;  599. 
U    S.  v.  Jenkins,  26  Fed.  Case,  No.  15437a,  p.  549. 
U.  S.  v.  Jenkins,  et  al,  176  F.  672,  p.  101. 


Table  of  Cases.  xxxv 

U.  S.  v.  Jin,  225  F.  1003;  241  U.  S.  394,  p.  509. 

IT.  S.  v.  Jin  Foy  Moy,  Sup.  Ct.,  Oct.  Term,  1915;  241  U.  S.  394,  p.  509. 

U.  S.  v.  Johnson,  228  F.  251;  177  F.  313;   221  U.  S.  488,  p.  624;   630. 

U.  S.  v.  Jolly,  37  F.  118,  p.  254. 

U.  S.  v.  Jones,  230  F.  262;   69  F.  973;   3  Wash.  C.  C,  209;   230  F.  263; 

32  F.  482;    193  U.  S.  530,  p.  19;   68;   275;    380;   385;    545. 
U.  S.  v.  Joyce,  136  F.  455,  p.  587. 
U.  S.  v.  Kallas,  272  F.  743;  272  F.  743,  p.  65;  366. 
U    S.  v.  Kamberz,  236  F.  378;   256  F.  247,  p.  462. 
U.  S.  v.  Kane,  23  F.  748;   19  F.  42,  p.  372;   156. 
U.  S.  v.  Kee,  39  F.  603,  p.  299. 
U.  S.  v.  Keen,  5  Mason,  453,  p.  300. 

U.  S.  v.  Keitzel,  211  U.   S.  370,  156  F.  396,  p.  372;    371. 
U    S.  v.  Kelley,  11  Wheat,  417,  p.  549. 
U.  S.  v.  Kelsh,  272  F.  848,  p.  6;   71. 
U.  S.  v.  Kelso,  86  F.  304,  p.  123. 
U.  S.  v.  Kennerly,  209  F.  119;   p.  179;    174. 
U.  S.  v.  Kenney,  90  F.  257,  p.  603. 
U.  S.  v.  Kenofskey,  235  F.  1019,  p.  200. 
U.  S.  v.  Kerr,  159  F.  185,  p.  163. 
U.  S.  v.  Kessel,  62  F.  57,  p.  323;  375. 
U    S.  v.  Kessler,  26  Fed.  Case,  766,  15528,  p.  554;  557. 
U.  S.  v.  Keystone  Watch  Co.,  218  F.  502,  p.  138. 
U.  S.  v.  Kilpatrick,  16  F.  765;    p.  301;    303. 
U.  S.  v.  Kimball,  117  F.  161,  p.  18. 
U    S.  v.  King,  250  F.  90S;  229  F.  275,  p.  141;   235. 
U.  S.  v.  Kirby,  74  U.  S.  19;  Law  Ed.,  278,  p.  15,5. 
U.  S.  v.  Kissel,   173  F.  823;   62  F.  57,  p.  33;   366. 
U    S.  v.  Klauder,  240  F.  501,  p.  178. 
U.  S.  v.  Kline,  210  F.  954,  p.  175. 
U.  S.  v.  Klintock,  5  Wheat.  144,  p.  545. 
U.  S.  v.  Komie,  194  F.  567,  p.  220;  223. 
U.  S.  v.  Koop,  245  F.  871,  p.  234. 
U.  S.  v.  Koplik,  155  F.  919,  p.  357. 
U.   S.  v.  Kraft,  249  F.  920,  p.  182. 
U.  S.  v.  Kramer,  262  F.  395,  p.  404. 
U.  S.  v.  Kresteff,  185  F.  201,  p.  635. 
U.  S.  v.  Krichman,  256  F.  974;   p.  333;   377. 
U.  S.  v.  Kuhl,  85  F.  624,  p.  259. 
U.  S.  v.  Kuenstsler,  74  F.  220,  p.  348. 
U.  S.  v.  Lacher,  134  U.  S.  624,  p.  163. 
U.  S.  v.  Lackey,  99  F.  952;  120  F.  57,  p.  574. 
U.  S.  v.  Laeski,  29  F.  699,  p.  265. 
U.  S.  v.  Lair,  118  F.  98,  p.  359. 
U.  S.  v.  Lake.  129  F.  499,  p.  285. 
U.  S.  v.  Lamar,  210  F.  685,  p.  102. 
U.  S.  v.  Lamkin,  73  F.  459,  p.  171. 
U.  S.  v.  Lamson,  173  F.  673;   165  F.  80,  p.  279;   586. 
U.  S.  v.  Lancaster,  44  F.  885,  p.  439. 
U.  S.  v.  Lantry,  30  F.  232,  p.  151. 
U.  S.  v.  Lawrence,  13  Blatch,  211,  p.  664. 
U.  S.  v.  Law,  59  F.  915,  p.  279. 
U.  S.  v.  Lavoie,  182  F.  934,  p.  634. 
U.  S.  v.  Lee,  90  F.  256;   170  F.  613,  p.  50;   164. 
IT.  S.  v.  Legg,  105  F.  933,  p.  395. 
U.  S.  v.  Lehman,  39  F.  768,  p.  401. 
U.  S.  v.  Lew,  224  F.  649,  p.   117. 
U.  S.  v.  Lewis,  253  F.  469;   192  F.  834;   192  F.  633;   235  U.  S.  — ;   11  F. 

630;  U.  S.  Sup.  Ct.  Rep.,  Oct.  Term,  1914;  p.  36;  39;  243;  620;   727. 
U   S.  v.  Libby,  W.  &  M.  221,  p.  512. 


xxxvi  Table  op  Cases. 

U.  S.  v.  Linnier,  125  F.  83,  p.  534. 

U.  S.  v.  Lissner,  12  F.  840,  p.  269. 

U.  S.  v.  Listnian,  263  F.  798,  p.  365. 

U.  S.  v.  Lockwood,  164  F.  772,  p.  586. 

U.  S.  v.  Loftin,  12  F.  671,  p.  187. 

U.  S.  v.  Logan,  26  Fed  Case,  No.  15624;    12  Sup.  Ct.  617;   36  Law  Ed. 

429,  p.  428;   576. 
U.  S.  v.  Lombardo,  Oct.  Term,  Sup.  Ct,  1915;   228  F.  980,  241  U.  S.  73, 

p.  18;   44;   642. 
U.  S.  v.  Lonabaugh,  158  F.  314,  p.  369. 
U   S.  v.  Long,  30  F.  678,  p.  222. 
U.  S.  v.  Lonkapot,  43  F.  64,  p.  384. 
U.  S.  v.  Lophansky,  232  F.  297,  p.  164;   168. 
U.  S.  v.  Loring,  91  F.  881,  p.  194. 
U.  S.  v.  Lowenthal,  257  F.  444,  p.  510. 

U    S.  v.  Lowry,  2  Wash.  169,  26  Fed.  Case,  Nc.  15636,  p.  202. 
U.  S.  v.  Lynch,  256  F.  983;  26  Fed.  Case,  No.  15648;   259  F.  982;  49  F. 

85;  p.  97;  212;  238;  333;  549. 
U.  S.  v.  Lydecker,  275  F.  976;    275  F.  977,  p.  7;    63. 
U.  S.  v.  Madison,  21  F.  628,  p.  281. 
U.  S.  v.  Maid,  116  F.  650,  p.  278. 
U.  S.  v.  Mallard,  40  Sup.  Ct.  151,  p.    277. 
U  S.  v.  Malone,  9  F.  897,  p.  98. 
U.  S.  v.  Manion,  44  F.  800,  p.  278. 
U.  S.  v.  Mann,  160  F.  552,  p.  228. 
U.  S.  v.  Mansfield,  177  F.  765,  p.  622. 
U.  S.  v.  Mansion,  44  F.  800;    p.  341. 
U.  S.  v.  Manufacturing  Co.,  240  F.  235,  p.  12. 

U.  S.  v.  Marchant  &  Colson,  25  U.  S.  479;   6  Law  Ed.  700,  p.  103. 
U.  S.  v.  Maresca,  266  F.  713,  p.  6. 
U.  S.  v.  Markewich,  261  F.  537,  p.  35. 
U.  S.  v.  Marigold,  9  Howard,  560,  p.  56. 
U.  S.  v.  Marrin,  170  F.  467;   227  F.  314,  p.  50;   645. 
U,  S.  v.  Marquette,  271  F.  120;  270  F.  214,  p.  7;  63. 
U.  S.  v.  Martin,  176  F.  110;  17  F.  150;   4  Cliff  (U.  S.),  156;   50  F.  918; 

140  F.  256;  p.  151;   171;   293;   368;  460. 
U.  S.  v.  Martindale,  146  F.  291,  p.  19. 
U.  S.  v.  Marx,  122  F.  964,  p.  373. 
U.  S.  v.  Mason,  213  U.  S.  115;   179  F.  552,  12  Blatchf.   (U.  S.),  497,  p. 

227;   263;   434;   443. 
U.  S.  v.  Masters,  264  F.  250,  p.  506. 
U.  S.  v.  Mathie,  274  F.  225,  p.  508. 
U.  S.  v.  Matthews,  35  F.  890,  p.  163. 
U.  S.  v.  Maxey,  200  F.  1001,  p.  191. 
U.  S.  v.  Mayer,  81  F.  159,  p.  315;    721. 
U.  S.  v.  McAndrews,  et  al.,  149  F.  823,  p.  140. 
U.  S.  v.  McAvoy,  25  Fed.  Case  1044;   6  Blatchf,  418,  p.  Ill;   556. 
U.  S.  v.  McClarty,  191  F.  538,  p.  605. 
U.  S.  v.  McClellan,  127  F.  971,  p.  520;    690. 
U.  S.  v.  McCoy,  193  U.  S.  599,  p.  216. 
U.  S.  v.  McCready,  11  F.  225,  p.  166. 
U.  S.  v.  McCrory,  175  F.  802,  p.  213. 
U.  S  v  McCullagh,  221  F.  288,  p.  457. 
U.  S.  v.  McDee,  4  Dill,  128,  p.  286. 
U.  S.  v.  McDonald,  8  Biss,  439;  26  Fed.  Case  No.  15667;  265  F.  695;  265 

F.  754,  p.  105;  212. 
U.  S.  v.  McHie,  et  al,  196  F.  586,  p.  66. 
U.  S.  v.  McHugh,  253  F.  224,  p.  366. 
U.  S.  v.  McKinley,  127  F.  166;   126  F.  242;   343;   373. 
U.  S.  v.  McLeod,  119  F.  416,  p.  300. 


Table  of  Cases.  xxxvii 

U.  S.  v.  McVickar,  164  F.  894,  p.  197. 

U.  S.  v.  Meager,  37  F.  875,  p.  528. 

U.  S.  v.  Means,  42  F.  599,  p.  604. 

U.  S.  v.  Melfi,  118  F.  899;   118  F.  902,  p.  369;   400. 

U.  S.  v.  Memphis  Railroad  Co.,  6  F.  239    p.  301. 

U.  S.  v.  Meresces,  266  F.  713,  p.  63. 

U.  S.  v.  Mescall,  164  F.  584,  p.  394. 

U.   S.  v.  Metzdorf,  252  F.  933,  p.  200. 

U.  S.  v.  Metzer,  270  F.  291,  p.  507. 

U.  S.  v.  Meyers,  140  F.  907,  p.  165. 

U.  S.  v.  Michalski,  265  F.  933,  p.  200. 

U.  S.  v.  Miller,  8  Utah,  29,  p.  215. 

U.  S.  v.  Milner,  36  F.  890,  p.,  372. 

U.  S.  v.  Mincey,  254  F.  287,  p.  506. 

U.  S.  v.  Mitchael,  153  F.  609,  p.  357. 

U.  S.  v.  Mitchell,  274  F  128;   2  Dall.  348;   2  Dall,  26  Fed.  Case,  1277; 

p.  8;   87;   141;   371;   408;   666. 
U.  S.  v.  Mixon,  et  al,  235  U.  S.  231,  p.  144. 
U   S.  v.  Mobelnski,  118  F.  495,  p.  174. 
U.  S.  v.  Moref,  136  F.  491,  p.  576. 

U.  S.  v.  Morehead.  U.  S.  Sup.  Ct.,  April,  1917,  p.  282. 
U.  S.  v.  Morgan,  22  U.  S.  274;   222  U.  S.  274,  p.  620;   621. 
U.  S.  v.  Moore,  104  F.  78;    60  F.  738;    144  F.  962;    18  F.  686,  p.  177; 

313'   347*   403. 
U    S.  v.'  Morris,  16  Blatch   (U.  S.),  133  F.  26,  Fed.  Case,  No.  15813,  p. 

125;    223;    322;    433. 
U.  S.  v.  Monisey,  245  F.  923,  p.  118. 
U.  S.  v.  Morse,  161  F.  429,  p.  605. 
U.  S.  v.  Mossen,  238  F.  383,  p.  101. 
U    S.  v.  Mounday,  et  al,  208  F.  186,  p.  67. 
U.  S.  v.  Mullins,  71  F.  682,  p.  292. 
U.  S.  v.  Munday,  186  F.  375,  p.  374. 
U.  S.  v.  Mundell,  Hughes,  415;    6  Coll,  245;    27  Fed.  Case,  No.   15834, 

p.  Ill;   293. 
U.  S.  v.  Murphy,  224  F.  554;  264  F.  842;  9  F.  26;  84  F.  60;  253  F.  404; 

244  F.  554;   261  F.  751;  p.  39;   51;   80;   119;  361;   420;   508. 
U    S.  v.  Mustgrave,  160  F.  243,  p.  175. 

U.  S.  v.  Mutual  Association,  131  U.  S.  ,  p.  89. 

U    S.  v.  Myler,  27  Fed.  Case,  No.  15849,  p.  346. 

U.  S.  v.  Nagler,  252  F.  217,  p.  182. 

U   S.  v.  Natura  Company,  250  F.  925,  p.  626. 

U.  S.  v.  Neal,  14  F.  767,  p.  281. 

U.  S.  v.  Nearing,  252  F.  223,  p.  182. 

U.  S.  v.  Nelson,  254  F.  889;    199  F.  464,  p.  10-283. 

U.  S.  v.  Netcher,  I  Storey,  307,  p.  551. 

U.  S.  v.  Nevin,  199  F.  831,  p.  25;   37;  41;   831. 

U   S.  v.  Newton,  275  F.  394;  52  F.  275;  48  F.  218,  p.  359;  363;  368;  626. 

U.  S.  v.  Nixon,  et  al.  Sup.  Ct.  of  U.  S.  Oct.  Term,  1914;   235  U.  S.  231, 

p.  119;  731. 
U.  S.  v.  Noelke,  1  F.  426,  p.  177. 
Q    S.  v.  N.  Y.,  131  F.  323,  p.  398. 
U  S.  v.  North,  184  F.  153,  p.  145. 
U.  S.  v.  Norris,  255  F.  423,  p.  140. 
U.  S.  v.  Norton,  91  U.  S.  250;   also  sec.  344  Penal  Code  Appendix;   188 

F.  256,  p.  136;   601. 
U.  S.  v.  Northway,  120  U.  S.  327;   30  Law  Ed.  665;    120  U.  S.  336;    30 

Law  Ed.  664,  p.  597;  710. 
U.  S.  v.  Nunez,  et  al.,  82  F.  599,  p.  421. 
U.  S.  v.  O'Brien,  et  al,  75  F.  900,  p.  416;  422. 
U.  S.  v.  O'Donnell,  165  F.  218,  p.  172. 


xxxviii  Table  of  Cases. 

U.  S  v.  Olney,  38  F.  328,  p.  184;  187. 

U.  S.  v.  Olson,  253  F.  232,  p.  234. 

U.  S.  v.  Oltney,  31  F.  68,  p.  267. 

U.  S.  v.  One,  272  F.  188;  259  F.  641;  257  F.  251;  259  F.  645;  262  F.  375; 

273  F.  253;  273  F.  275;  274  F.  470;  274  F.  473;  274  F.  926;  263  P. 

241,  p.  506;  570. 
U.  S.  v.  One  Machine,  267  F.  501,  p.  506. 
U.  S.  v.  One  Purple  Costume,  158  F.  899,  p.  659. 
U.  S.  v.  One  Trunk,  175  F.  1012;  184  F.  317;  171  F.  772,  p.  658;  659. 
U.  S.  v.  Oppenheim,  228  F.  220;  228  F.  221;  U.  S.  Sup.  Ct.  1916,  p.  64; 

243. 
U.  S.  v.  Orr,  233  F.  717,  p.  588. 

U.  S.  v.  O'Sullivan,  27  Fed.  Case,  No.  15975,  p.  422. 
U.  S.  v.  O'Toole,  236  F.  993,  433. 

U.  S.  v.  Owens,  17  F.  72;  37  F.  112;  32  F.  534,  p.  269;  615. 
U.  S.  v.  Palmer,  3  Wheat  610,  p.  545;  556. 
U.  S.  v.  Pape,  233  F.  270,  p.  182. 
U.  S.  v.  Parker,  121  U.  S.  596,  p.  574. 
U.  S.  v.  Parsons,  261  F.  223,  p.  510. 

U.  S.  v.  Patten,  226  U.  S.  525;  187  F.  664;  226  U.  S.  527,  p.  138;   144. 
U.  S.  v.  Patterson,  172  F.  241;  201  F.  698;  29  F.  775,  p.  98;  138;  282. 
U.  S.  v.  Patrick,  53  F.  356;  54  F.  338,  p.  439. 
U.  S.  v.  Paul,  6  Peters,  141  p.  54.   • 
U.  S.  v.  Pecham,  143  F.  625,  p.  46. 
U.  S.  v.  Pena,  69  F.  983,  p.  422. 
U    S.  v.  People's,  271  F.  790,  p.  5. 

U.  S.  v.  Perez,  9  Wheat  578,  Vol.  6,  Law  Ed.  165  p.  53. 
U    S.  v.  Perlman,  247  F.  158,  p.  110. 
U.  S.  v.  Perrin,  131  U.  S.  55,  p.  372. 
U.  S.  v.  Persons,  2  Blatchf.  104,  p.  166. 

U    S.  v.  Peters,  87  F.  985;   32  Abb.   (U.  S.)   494,  p.  267;   603. 
U.  S.  v.  Peterson,  268  F.  864;    64  F.   145;    27   Fed.  Case,  515,    p.   507; 

529;   551. 
U.  S.  v.  Pettus,  84  F.  791,  p.  283. 
U.  S.  v.  Phelan,  250  F.  927;   225  F.  891,  p.  12;  242. 
v.  Phila.  Co.,  125  U.  S.  113,  p.  92. 
v.  Phila  Railway  Co.,  221  F.  683,  p.  110. 
v.  Phillips,  196  F.  574,  p.  616. 
v.  Pierce,  245  F.  878;   245  F.  888,  p.  123;    182. 
v.  Pile,  130  U.  S.  280,  p.  98. 
U.  S.  v.  Pine  River  Logging  &  Improvement  Co.,  89  F.  907,  p.  386. 
U.  S.  v.  Pirates,  5  Wheat  184;   5  Wheat  184,  p.  422;   545. 
IT.  S.  v.  Pittman,  27  Fed.  Case,  540,  p.  554. 
U.  S.  v.  Pitto,  267  F.  603,  p.  68. 
U.  S.  v.  Pitts,  112  F.  522,  p.  251. 
U.  S.  v.  Piowaty,  251  F.  375,  p.  141. 
U.  S.  v.  Plyer,  222  U.  S.  15,  p.  344. 
U.  S.  v.  Pollack,  230  F.  532,  p.  120. 
U.  S.  v.  Polite,  35  F.  58,  p.  301. 
U.  S.  v.  Politzer,  59  F.  273,  p.  212. 
U.  S.  v.  Porlate,  et  al.,  235  U.  S.  27,  p.  729. 
U.  S.  v.  Porrazo,  242  F.  276,  p.  7. 
U.  S.  v.  Porria,  255  F.  172,  p.  11. 
U.  S.  v.  Post,  113  F.  852,  p.  189. 
U.  S.  v.  Postmaster,  221  F.  687,  p.  246. 
U.  S.  v.  Powell,  151  F.  648,  p.  437. 
U.  S.  v.  Praeger,  149  F.  484,  p.  13. 
U.  S.  v.  Pratt,  27  Fed.  Case,  No.  16082,  p.  187. 
U.  S.  v.  Premises,  246  F.  185,  p.  5. 
U.  S.  v.  Prentis,  182  F.  894,  p.  634. 


u 

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Table  of  Cases.  xxxix 

U.  S.  v.  Press  Publishing  Co.  219  U.  S.  1,  p.  543. 

IL  S.  v.  Pressy,  i  Lowell,  319,  p.  570. 

U.  S.  v.  Price,  163  F.  904,  p.  13. 

U.  S.  v.  Pryor,  27  Fed.  Case,  628,  p.  408. 

U.   S.   v.  Puhac,  268  F.  392,  p.  507. 

U.  S.  v.  Purple,  133  F.  243,  p.  175. 

U.  S.  v.  Purvis,  195  F.  618,  p.  210. 

U.  S.  v.  Quartius,  267  F.  227,  p.  7;   10. 

U.  S.  v.  Quincy,  6  Peters,  445,  p.  423. 

U.  S.  v.  Raich,  144  F.  486;   163  F.  911;  p.  197;   398. 

U.  S.  v.  Ram,  254  F.  635,  p.  423. 

U.   S.  v.  Ray,  275  F.  1004,  p.   6. 

U.  S.  v.  Reagan,  273  F.  729,  p.  645. 

U.  S.  v.  Reed,  Fed.  Case,  No.  16134,  p.  41. 

U.  S.  v.  Reichurt,  32  F.  142,  p.  358. 

U.  S.  v.  Reid,  12  Howard,  363;   73  F.  289,  p.  21;    177. 

U.  S.  v.  Reid,  et  al.,  210  F.  486,  p.  550. 

U.  S.  v.  Reiley,  173  F.  159;  131  U.  S.  59;  33  Law  Ed.  75,  p.  341;  372. 

U.  S.  v.  Reinheimer,  233  F.  545,  p.  177. 

U  S.  v.  Reed,  274  F.  724,  p.  655. 

U.  S.  v.  Rennecke,  38  F.  847,  p.  572. 

U.  S.  v.  Reece,  4  Sawyer,  629,  p.  346. 

U.  S.  v.  Reeves,  92  U.  S.  21;  23  Law  Ed.  563,  p.  431. 

U.  S.   v.  Reynolds,  et.  al.,  235  U.   S.  133;    244  F.  991;    U.   S.   Sup.  Ct. 
Oct.  Term,  1914,  p.  510;   523;   721 

U.  S.  v.  Rhodes,  212  F.  518;    212  F.  513;    30  F.  431,  p.  283;    358;    518: 
617. 

IT   S.  v.  Rice,  192  F.  720,  p.  50. 

U.  S.  v.  Richards,  149  F.  443,  p.  371. 

U.  S.  v.  Ridgway,  199  F.  281,  p.  210. 

U.  S.  v.  Riddle,  4  Wash.  644,  p.  551. 

U.  S.  v.  Ridnour,  119  F.  401,  p.  577. 

U.  S.  v.  Rintelen,  233  F.  793;   235  F.  787,  p.  45-   140. 

U.  S.  v.  Rio  Grande,  etc.,  184  U.  S.  423,  p.  133 

U    S.  v.  Rispoli,  189  F.  271,  p.  640. 

XL  S.  v.  Robertson,  257  F.  195,  p.  282. 

IT.  S.  v.  Rockefeller,  260  F.  346,  p.  456. 

U.  S.  v.  Roekteschell,  208  F.  530,  p.  404. 

U.  S.  v.  Robinson,  259  F.  685;   266  F.  240;  266  F.  240,  p.  5;  365. 

IT.   S.  v.  Rogers,  150  U.   S.  249;    37  Law   Ed.    1071;    46  F.   1;    27   Fed- 
Case,  No.  16187;   226  F.  512;   p.  529;   365;   549. 

IT.  S.  v.  Rohmstorimm,  5  Blatchf.  222,  p.  347. 

U.  S.  v.  Rolinger,  27  Fed.  Case,  No.  16190— a,  p.  576. 

IT.  S.  v.  Rose,  212  F.  518,  p.  284. 

U.  S.  v.  Rosenblum,  121  F.  180,  p.  212. 

U.  S.  v.  Rosenstein,  211  F.  738,  p.  280. 

U.  S.  v.  Rosenthal,  126  F.  766,  p.  396. 

U.  S.  v.  Rossenwasser,  255  F.  233,  p.  123. 

IT.   S.   v.   Rossi,  268  F.   620,  p.  257. 

IT.  S.  v.  Rotagozak.  275  F.  558.  p.  12. 

IT.  S.  v.  Roussopulous,  95  F.  977;  95  F.  978,  p.  266;   272. 

U.  S.  v.  Route,  33  F.  246,  p.  359. 

U.  S.  v.  Royer,  122  F.  844,  p.  222;   227. 

IT.  S.  v.  The  Resolute,  40  F.  543,  p.  422. 

U.  S.  v.  The  Robert  &  Minnie,  47  F.  84,  p.  422. 

U    S.  v.  Rubin,  et  al.,  218  F.  245,  p.  111. 

U.  S.  v.  Ruggles,  5  Mass.  192,  p.  551. 

U.  S.  v.  Rush,  196  F.  580,  p.  350. 

U.  S.  v.  Russell,  22  F.  390;  41  Sup.  Ct.  Rep.  260;  U.  S.  Sup.  Ct.  April, 
1921;   19  F.  591,  p.  268;   300;   301;   358. 


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xl  Table  of  Cases. 

U.  S.  v.  Ryan,  123  F.  634,  p.  194. 
U.  S.  v.  Rydowski,  267  F.  866,  p.  508, 
U.  S.  v.  Sacein,  269  F.  33,  p.  506. 
U.   S.  v.  Sacia,  2  F.  754,  p.  363. 
U.  S.  v.  Sacks,  42  Sup.  Ct.  Rep.  38  p.  257. 
U.  S.  v.  Safford,  66  F.  942,  p.  165. 
U.  S.  v.  Salen,  216  F.  420,  p.  280;  283. 
U.  S.  v.  Sandefur,  145  F.  849,  p.  583. 
U   S.  v.  Sander,  241  F.  417,  p.  423. 

U.  S.  v.  Sanders,  6  McClain,  598;   77  F.  170,  p.  151;   166. 
U.  S.  v.  Sanges,  48  F.  — ,  p.  439. 
U.  S.  v.  Sauer,  88  F.  249,  p.  194. 

U.  S.  v.  Schallinger,  230  F.  290,  p.  45;   47;   125;   626. 
v.  Schawver,  214  F.  154,  p.  455. 
v.  Schenck,  253  F.  212,  p.  366. 
v.  Schider,  U.  S.  Sup.  Ct.  Apr.,  1918,  p.  626. 
v.  Schlierholz,  137  F.  616;   133  F.  333,  p.  312;   616. 
U.  S.  v.  Schlatter,  235  F.  381,  p.  200. 

U.  S.  v.  Schooner,  2  Paine,  25  Fed.  Case,  No.  14755;   16344,  p.  516;   549. 
U.  S.  v.  Schrader,  40  Sup.  Ct.  Rep.  251,  p.  233. 
U.  S.  v.  Schulte,  252  F.  213,  p.  182. 
U.  S.  v.  Schulze,  253  F.  377,  p.  182. 
U.  S.  v.  Schwarz,  230  F.  537,  p.  211. 
U.  S.  v.  Scott,  232  F.  192,  p.  45. 
U.  S.  v.  Sears,  55  F.  268,  p.  156. 

U.  S.  v.  Seagrist,  27  Fed.  Case,  Nos.  16245;   16037,  p.  549. 
U    S.  v.  Selkirk,  258  F.  775,  p.  456. 
U.  S.  v.  Sharp,  27  Fed.  Case,  16246,   p.  459. 
U.  S.  v.  Shelton,  100  F.  831,  p.  151. 
U.  S.  v.  Sherwood,  177  F.  596,  p.  191. 
U    S.  v.  Shinn,  14  F.  447,  p.  281. 
U.  S.  v.  Shorey,  9  Internal  Revenue  302,  27  Fed.  Cas.  No.  16281,  also 

page  349,  Vol.  Gould  &  Tucker  Notes,  p.  136. 
U.  S.  v.  Sibray,  178  F.  144,  p.  633. 
U.  S.  v.  Silverthorne,  265  F.  853,  p.  44. 
U.  S.  v.  Simon,  248  F-  980;   146  F.  92; 
U.  S.  v.  Simmons,  61  F.  640,  p.  187. 

U.  S.  v.  Simpson,  229  F.  940;   40  Sup.  Ct.  364,  p.  13;   476. 
U.  S.  v.  Sischo,  262  F.  1001,  p.  630. 
U.  S.  v.  Sisson,  230  F.  974,  p.  117. 
U    S.  v.  Six  Barrels,  253  F.  199,  p.  625. 
U.  S.  v.  Skinner,  218  F.  871,  p.  17. 
U.  S.  v.  Slusser,  270  F.  818,  p.  508. 
U.  S.  v.  Smaller,  275  F.  1011,  p.  6. 
U.  S.  v.  Smart,  237  F.  978,  p.  51. 
U.  S.  v.  Smiley,  27  Fed.  Case,  1132,  p.  554. 
U.   S.  v.  Smith,   163   F.   926;    262   F.   191;    156   F.   859;    152   F.   542;    11 

Utah,  433;   5  Wheat  153;   45  F.  115;   69  F.  971;   11  F.  663;   269;   40 

F.  755  F    191;    1  Dill.  212;    27  Fed.  Case,  No.  16333,  173   F.   227; 

227  F.  165;   45  F.  561;   166  F.  958;   163  F.  926;   115  F.  423,  p.  167; 

187;    197;    198;    203;    251;    246;    292;    334;    336;    349;    358;    457; 

545;  576;  607;  688;  805. 
U.  S.  v.  Snyder,  14  F.  554,  p.  71;   215. 
U.  S.  v.  Sohm,  265  F.  910,  p.  573. 
U.  S.  v.  Somers,  164  F.  259,  p.  175. 
U.  S.  v.  Sprague,  208  F.  419;   48  F.  828,  p.  625. 
U.  S.  v.  Stafoff,  268  F.  417,  p.  507. 
U.  S.  v.  Stamapoulos,  164  F.  524,  p.  367. 
U.  S.  v.  Standard  Oil  Co.,  173  F.  177,  p.  139. 
U.  S.  v.  Staples,  45  F.  195,  p.  192. 


Table  of  Cases.  xli 

U.  S.  v.  Starnes,  37  F.  665,  p.  576. 

U.  S.  v.  Steinman,  172  F.  913,  p.  607. 

U.  S.  v.  Stell,  Co.,  40  Sup.  Ct.  Rep.  293,  p.  140. 

U.  S.  v.  Stephens,  245  F.  956,  p.  120. 

U.  S.  v.  Stevens,  44  F.  132;  52  F.  120,  p.  260;  367. 

U.  S.  v.  Stilson,  254  F.  120,  p.  91. 

U.  S.  v.  St.  John,  254  F.  794,  p.  102. 

U.  S.  v.  St.  Louis  Railway  Co.,  169  F.  73,  p.  79. 

U.  S.  v.  Stoho,  251  F.  689,  p.  200. 

U.  S.  v.  Stone,  197  F.  483;   188  F.  836;   8  F.  232;   8  F.  239,  p.  22;    111; 

432;    553. 
U.  S.  v.  Stores,  14  F.  824,  p.  384. 
U.  S.  v.  Strickrath,  242  F.  151,  p.  200. 
U.  S.  v.  Strobach,  48  F.  902,  p.  359. 
U.  S.  v.  Strong,  263  F.  789,  p.  365. 
U.  S.  v.  Stubblefield,  40  F.  454,  p.  567. 
U.  S.  v.  Sugarman,  245  F.  605,  p.  182. 
U.  S.  v.  Sullivan,  250  F.  623,  p.  462. 
U.  S.  v.  Sweeney,  95  F.  434,  p.  32. 
U.  S.  v.  Taucher,  233  F.  597,  p.  423. 
U.  S.  v.  Taylor,  108  F.  621,  p.  351. 
U.  S.  v.  Terrell,  1  Fed.  Case,  999,  p.  556. 
IT.  S.  v.  Terry,  41  F.  771,  p.  290. 

U.  S.  v.  Thayer,  209  U.  S.,  154  F.  508,  p.  335;  688;  805. 
U.  S.  v.  Thomas,  55  F.  380;   47  F.  807;    69  F.  588;    28  Fed.  Case  No. 

16471,  p.  156;   166;   300. 
U.  S.  v.  Thompson,  28  Fed.  Case,  No.  16492,  202  F.  346;   31  F.  331;   40 

Sup.  Ct.  Rep.  289;  147  F.  637,  p.  43;  96;  287;  456;   641. 
U.  S.  v.  Three  Copper  Stills,  47  F.  495,  p.  577. 

U.  S.  v.  Three  Friends,  166  U.  S.  1;  Lawyers  Ed.  41,  page  915,  p.  419. 
U    S.  v.  Tinglepaugh,  3  Blatchf.  425,  p.  291. 
U.  S.  v.  Todd,  25  F.  815,  p.  341. 

U.  S.  v.  Tract  of  Land,  1  Wood  475;  28  Fed.  Case,  203,  p.  409. 
U.  S.  v.  Trans-Missouri  Freight  Association,  166  U.  S.  290,  p.  140. 
U.  S.  v.  Trasp,  127  F.  471,  p.  162. 
U.  S.  v.  Trice,  30  F.  490,  p.  546. 
U.  S.  v.  Trosper,  127  F.  467,  p.  168. 
U.  S.  v.  Trumbull,  48  F.  99,  p.  422. 
U.  S.  v.  Tsokas,  163  F.  129,  p.  636. 
U.  S.  v.  Tuberclecide  Co.,  252  F.  938,  p.  625. 
U.  S.  v.  Tucker,  188  F.  741,  p.  625. 
U    S.  v.  Tully,  140  F.  899;    28  Fed.  Case,  16545;    1  Gallis,  247  F.  545, 

p.  527;    557. 
U.  S.  v.  Turner,  7  Peters,  132,  8  Law.  Ed.  633,  p.  258. 
U.  S.  v.  Twenty  Caskets,  etc.,  133  F.  910,  p.  582. 
U.  S.  v.  Two  Cans,  268  F.  866,  p.  626. 
U.  S.  v.  Underwood,  267  F.  412,  p.  201. 
Ulmer  v.  U.  S.,  266  F.  176;  219  F.  641,  p.  91;  280. 
U.  S.  v.  Uhl,  266  F.  35,  p.  117. 
U.  S.  v.  Union,  259  F.  907,  p.  365. 
U.  S.  v.  Union  Mfg.  Co.,  240  U.  S.  605,  p.  244. 
U.  S.  v.  Union  Pacific,  188  F.  102,  p.  139. 
U.   S.  v.  U.   S.,   262   F.   459,  p.   462. 

U.  S.  v.  United  Shoe  Company,  264  F.  138,  p.  141;  235. 
U.  S.  v.  Van  Auken,  96  U.  S.  366,  p.  266. 
U.  S.  v.  Vanduzee,  140  U.  S-,  173,  p.  19;    40 
U.  S.  v.  Vane,  254  F.  28,  p.  645. 

U.   S.   v.   Van   Horn,   20,   International  R.  E.   E.,    145,   p.   751. 
U.  S.  v.  Van  Leuven,  2  F.,  62;  62,  F.,  62;   62,  F.,  935,  p.  323,  331,  3.59. 
U    S.   v.   Vanranst,   28    Fed.    Case    No.    16608,   p.    555. 


xlii  Table  of   Cases. 


U.  S.  v.  Van  Schaick,  134,  F.  592,   134,  F.  594,  p.   539,  695. 

U.  S.  v.  Vigol,  28,  Fed.  case  376,  p.  408. 

U.    S.   v.   Vilato,   2   Dall.   370,   p.   408. 

U.  S.  v.  Voltz,  14  Blatchf,  15,  p.  282. 

U.  S.  v.  Voorhes,  9,  F.  864,  p.  603. 

U    S.  v.  Wan,  160  F.  207,  p.  28;   218. 

U.  S.  v.  Wallace,  40  F.  144,  p.  359. 

U.  S.  v.  Waller,  225  F.  673,  p.  120. 

U.  S.  v.  Wallis,  268  F.  413,  p.  117. 

U.  S.  v.  Waitz,  3  Sawy,  28  Fed.  Case,  No.  16631,  p.  313. 

U.  S.  v.  Walsh,  22  F.  622,  p.  285. 

U.  S.  v.  Walter  Scott  Stamp  Co.,  87  F.  721,  p.  218. 

U.  S.  v.  Watkins,  3rd,  Cranch,  C.  441;   58  F.  492;   136;   208. 

U.  S.  v.  Watson,  266  F.  736;  35  F.  358;  251  F.  310,  p.  6;   194;  655. 

U.  S.  v.  Weber,  210  F.  973,  p.  270. 

U    S.  v.  Webber,  210  F.  973,  p.  254. 

U.  S.  v.  Welch,  243  F.  996,  p.  432. 

U.  S.  v.  Wello,  225  F.  320;   262  F.  833;   186  F.  248;   163  F.  313,  p.  77;  45; 

140;   181;   621. 
U.  S.  v.  Wells  Co.,  186  F.  248,  p.  9. 
U.  S.  v.  Welsh,  250  F.  309,  p.  248. 
U    S.  v.  Weis,  181  F.  860,  p.  634. 
U.  S.  v.  Weitzel,  U.  S.  Supt.  Ct.  April,  1918,  p.  599. 
U.  S.  v.  Wentworth,  11  F.  52,  p.  342. 
U.  S.  v.  Werner,  247  F.  709,  p.  408. 
U.  S.  v.  Westerwelt,  5  Blatchf,  30,  p.  512. 
U    S.  v.  Wetrnore,  218  F.  227,  p.  109. 
U    S.  v.  Wheeler,  254  F.  611,  p.  432. 
U.  S.  v.  Whiting,  212  F.  467,  p.  139. 
U.  S.  v.  Whipley,  125  F.  617,  p.  207. 
U.  S.  v.  White,  19  F.  724;   150  F.  379,  p.  197;  266. 
U.  S.  v.  Wilberger,  5  Wheat,  U.  S.  76,  p.  408. 
U.  S.  v.  Wilcox,  4  Blatchf,  385;   243  F.  993,  p.  347;   432. 
U.  S.  v.  Williams,  3  F.  484;    26  F.  690;    14  F.  550;    57  F.  210,  p.  151; 

177;   217;   251. 
U.  S.  v.  Wiltbarger.  5  Wheat,  97,  p.  409. 
U.  S.  v.  Winchester,  3  McLean,  135,  p.  281. 
U.  S.  v.  Windharm,  264  F.  376,  p.  506. 
U.  S.  v.  Wing,  211  F.  935,  p.  115. 
U.  S.  v.  Wilson,  60  F.  890;  44F.  751;  46  F.  748;  225  F.  82;    176  F.  806: 

226  F.  712;  44  F.  593;  28  Fed.  Case  699;  28  Fed.  Case,  718;  28  Fed. 

Case  16732;  144  U.  S.  24;   60  F.  890;   7  Peters,  159,  p.  11;  96;    154: 

163;   167;  215;   259;   347;   363;   373;   509;   605;   635. 
U.  S.  v.  Woods,  224  F.  278;  224  F.  280;  28  Fed.  Case,  No.  16759,  p.  471; 

509;   575;   630. 
U.  S.  v.  Woodson,  357  F.  358,  p.  192. 
U.  S.  v.  Wooten,  29  F.  702,  p.  192. 
U.  S.  v.  Woodward,  44  F.  592,  p.  156. 
U.  S.  v.  Wupperman,  et  al,  215  F.  135,  p.  365. 
U.  S.  v.  W.  W.  Fishing  Co.,  224  F.  274,  p.  625. 
U.  S.  v.  Wynn,  9  F.  894,  p.  9. 
U.  S.  v.  Ybanez,»53  F.  536. 
U.  S.  v.  Yee  Ling,  222  F.  154,  p.  629. 
U.  S.  v.  Yennie,  74  F.  221,  p.  22  also  at  p.  151. 
U.  S.  v.  Yet  Yee,  192  F.  577,  p.  115. 
U.  S.  v.  Yohn,  275  F.  232,  p.  462. 
U.  S.  v.  Young,  232  U.  S.  155;  215  F.  286;  25  F.  710;   128  F.  Ill,  p.  25; 

191;   227;   604. 
U    S.  v.  Yount,  267  F.  861,  p.  48. 
U.  S.  v.  Youtsey,  91  F.  864;   91  F.  867,  p.  597;   603. 


Table  of  Cases.  xliii 

U.  S.  v.  Yuen,  211  F.  1001,  p.  115. 
U.  S.  v.  Yuginni,  266  F.  745;  274  F.  — ,  p.  506;   578. 
U.  S.  v.  Zarafonitis,  150  F.  99,  p.  50. 

V. 
Van  Werkhoven,  250  F.  311,  p.  248. 
Vane  v.  U.  S.  254  F.  28,  p.  102;   653. 

Van  Dusen  v.  U.  S.  151  F.  989,  p.  197. 
Van  Schaick  v.  U.  S.  159  F.  847,  p.  539. 
Van  Pelt  v.  U.  S.  240  F.  347,  p.  636. 
Vernon  v.  U.  S.,  146  F.  121,  p.  376. 
Veeder  v.  U.  S.,  252  F.  414,  p.  5. 
Vives  v.  U.  S.,  92  F.  355,  p.  222. 
Vicksburg  v.  O'Brien,  119  U.  S.  99,  p.  246. 
Virginia  v.  Rives,  100  U.  S.  313,  p.  432. 
Virginia  v.  Paul,  148  U.  S.  107,  p.  43. 
Vicksburg  v.  Putnam,  118  U.  S.  545,  p.  92. 
Violitte  v.  Walsh,  272  F.  1014,  p.  506. 
Voves  v.  U.  S.  249  F.  191,  p.  507. 
Voege  v.  U.  S.  270  F.  219,  p.  95. 

W. 

Watlington  v.  U.  S.  233  F.  247,  p.  238. 

Wauen  v.  Flower,  29  Fed.  Cas.,  255,  p.  247. 

Ward  v.  Congress,  99  F.  598,  p.  247. 

Wan  Din  v.  U.  S.,  135  F.  704,  p.  371. 

Wallace  v.  Van  Riswick,  92  U.  S.  202,  p.  409. 

Warren  v.  U.  S.,  183  F.  718,  p.  183;  199  F.  753,  p.  616. 

Walker  v.  U.  S.,  152  F.  Ill,  p.  194. 

Walsh  v.  U.  S.,  177  F.  208,  p.  101;  174  F.  615,  p.  606. 

Wagman  v.  U.  S.,  269  F.  568,  p.  118. 

Wallace  v.  U.  S.,  243  F.  300,  p.  119;  509. 

Walster  v.  U.  S.,  42  F.  891,  p.  163. 

Westinghouse  v.  Diamond,  268  F.  121,  p.  235. 

Westin  v.  Conn,  111  Pa.  251,  p.  236. 

Weeds  v.  U.  S.,  41  Sup.  Ct.  Rep.  306,  p.  246. 

Wetzel  v.  U.  S.  233  F.  984,  p.  246;   274  F.  101,  p.  320;   p.  178. 

West  v.  U.  S.,  258  F.  413,  p.  287. 

Wells  v.  U.  S.,  257  F.  605,  p.  411. 

Webber  v.  Freed,  239  U.  S.  325,  p.  182. 

Weems  v.  U.  S.,  217  U.  S.  349,  p.  126. 

Welsing  v.  U.  S.,  218  F.  369,  p.  163. 

Weddel  v.  U.  S.,  213  F.  208,  p.  641. 

Welch  v.  U.  S.,  220  F.  764,  p.  641. 

Wessel  v.  U.  S.,  262  F.  389,  p.  56. 

Weeks  v.  U.  S.,  232  U.  S.  383,  p.  67;  7;  U.  S.  Sup.  Ct,  Feb.,  1918,  p.  625. 

Weathers  v.  U.  S.,  269  F.  254,  p.  88. 

Webb  v.  U.  S.,  U.  S.  Sup.  Ct.  March,  1919,  p.  510. 

Wesoky  v.  U.  S.,  175  F.  333,  p.  586. 

Wechsler  v.  U.  S.,  158  F.  579,  p.  615. 

Whittaker  v.  Brannon,  252  F.  556,  p.  247. 

Wheeler  v.  U.  S.,  159  U.  S.  523,  p.  133;   226  U.  S.  478,  p.  29. 

Whiting  v.  U.  S.,  263  F.  477,  p.  82. 

Wiggins  v.  U.  S.,  214  F.  970,  p.  253. 

Williamson  v.  U.  S.,  U.  S.  Sup.  Ct.  Oct.  Term,  1907;    207  U.  S.  425,  p. 

372. 
Wilden  v.  U.  S.,  143  F.  433,  p.  298. 
Williams  v.  U.  S.,  168  U.  S.  382,  p.  313;   97;   254  F.  52,  p.  112;   54;    70; 

275  F.  129,  p.  20;   158  F.  30,  p.  580. 
Windsor  v.  McVeigh,  93  U.  S.  274,  p.  409. 


xliv  Table  of   Cases. 

Wigborg  v.  U.  S-,  163,  U.  S.  632,  p.  417;    126. 
Wilborg  v.  U.  S.,  163  U.  S.  556,  p.  92. 

Wilson  v.  U.  S.,  190  F.  427,  p.  199;  275  F.  307,  p.  199;  123-  232  U.  S.  563, 
p.  640;   162  U.  S.  613,  p.  61;  221  U.  S.  361,  p.  17;   229  F.  344,  p.  509. 
Wine  v.  U.  S.,  260  F.  911,  p.  199. 
Williams  v.  Conger,  125  U.  S.  397,  p.  145. 
Withamp  v.  U.  S.,  127  F.  530,  p.  145. 
Winters  v.  U.  S.,  201  F.  845,  p.  179. 
Wilder  v.  U.  S.,  143  F.  439,  p.  42. 
Winston  v.  U.  S.,  172  F.  304,  p.  534. 
Willingham  v.  U.  S.,  208  F.  137,  p.  569. 
Wolf  v.  U.  S.,  259  F.  388,  p.  182;  238  F.  903,  p.  618. 
Woodruff  v.  U.  S.  58  F.  767,  p.  92. 
Woerheider  v.  Jones,  199  F.  535,  p.  125. 
Woodman  v.  Bailey,  183  S.  W.,  107,  p.  17. 
Woods  v.  U.  S.,  174  F.  651,  p.  606. 
Wright  v.  U.  S.  108  F.  805,  p.  371. 
Wright  v.  Henkel,  190  U.  S.  62,  p.  28. 

Y. 
Yeates  v.  U.  S.,  254  F.  60,  p.  248;    635. 
Ye  Ging  v.  U.  S.,  190  F.  270,  p.  115. 
Yet  Yee,  192  F.  577,  p.  115. 
Yick  v.  U.  S.,  240  F.  60,  p.  367. 

Young  v.  Corrigan,  208  F.  431;  210  F.  442,  p.  81;  249  F.  937. 
Young  v.  U.  S.,  272  F.  967;  242  F.  788;  272  F.  967,  p.  10;  241;  507;  636. 
Youngblood  v.  U.  S.,  266  F.  795,  p.  143;  282. 
Youmans  v.  U.  S.,  264  F.  425,  p.  88;   28. 
Youtsey  v.  U.  S.,  97  F.  940,  p.  127. 

Z. 

Zion  Institute,  etc.,  v.  Hollister,  3  Utah  301,  p.  267. 


FEDERAL  CRIMINAL  LAW 


CHAPTER  I. 

THE    UNITED    STATES    CONSTITUTION. 

§  1.  The  U.  S.  Constitution — Supreme  Law. 

2.  Arts.   V,   VII,   III,   I. 

3.  Source  of  Federal   Law. 

4.  Republican  Guaranties 

4a.  "Unreasonable"  Charges,  Unreasonable  Searches,  amendments  to 
Constitution,  etc. 

5.  Infamous  Crimes. 

5a.  Felonies — misdemeanors. 
5b.  Information. 

6.  Jeopardy. 

6a.  Identity  of  offense  must  be  shown. 
6b.  Jeopardy  Continued. 

7.  Witness  against  self. 

7a.  Witness  against  self — Continued:    Cannot  compel  one  to  accept 

a  pardon. 
7b.  Incrimination,  Continued. 

8.  Art.  VI  of  Constitution  as  bearing  on  trial  by  Jury;     Copy  of 

Indictment  and  Confronting  by  Witnesses. 
8a.  Guarantees  as  to  jury  and  procedure. 
8b.  Continued. 
8c.  Continued. 

9.  Federal  Courts  controlled  by  Federal  Statute  only. 
9a.  No   common   Law   jurisdiction.     Federal   Procedure. 

§  1.  The  United  States  Constitution — Supreme  Law. 
The  Constitution  of  the  United  States  provides  in  Sec- 
tion 2  of  Article  VI.,  that,  "The  Constitution  and  the 
laws  of  the  United  States  which  shall  be  made  in  pur- 
suance thereof. ....'.  shall  be  the  supreme  law  of  the  land ; 
the  judges  in  every  state  shall  be  bound  thereby,  anything 
in  the  Constitution  or  laws  of  any  state  to  the  contrary 
notwithstanding. ' ' 

§  2.  Article  V.  of  the  Amendments  to  the  Constitution 
provides: 

1 

l 


2  Federal  Criminal  Law  Procedure. 

"No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  in- 
famous crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces  or  in  the 
militia  when  in  actual  service  in  time  of  war  or  public  danger;  nor 
shall  any  person  be  subject,  for  the  same  offense,  to  be  twice  put 
in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any  criminal 
case  to  be  witness  against  himself;  nor  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law,  nor  shall  private  property 
be  taken  for  public  use  without  just  compensation." 

Article  VI.  of  the  Amendments  provides: 

"In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial,  by  an  impartial  jury  of  the  state  and  dis- 
trict wherein  the  crime  shall  have  been  committed,  which  district 
shall  have  been  previously  ascertained  by  law,  and  be  informed  of 
the  nature  and  cause  of  the  accusation;  to  be  confronted  with  the 
witnesses  against  him;  to  have  compulsory  process  for  obtaining 
witnesses  in  his  favor,  and  to  have  the  assistance  of  counsel  for  his 
defense." 

By  Article  III.  of  the  Constitution,  the  judicial  power  is 
vested  in  a  Supreme  Court,  and  in  such  inferior  courts  as 
Congress  may  establish. 

In  Section  8,  Article  I.,  Congress  is  authorized  spe- 
cifically to  establish  naturalization  laws,  uniform  bank- 
rupt laws,  to  coin  money,  to  establish  post-offices  and 
post-roads,  to  promote  the  progress  of  science  and  useful 
arts,  and  to  make  all  laws  necessary  and  proper  for  carry- 
ing into  execution  any  of  the  powers  vested  by  the  Con- 
stitution in  the  government  of  the  United  States,  or  in 
any  department  or  officer  thereof. 

§  3.  From  these  specific  grants  of  power,  as  well  as 
from  the  power  that  is  inherent  in  sovereignty  to  pass 
such  regulations  as  will  conserve  the  liberties  of  the  in- 
dividual and  the  existence  of  the  sovereignty,  has  come 
the  Federal  criminal  law. 

The  power  to  establish  post-offices  and  post-roads  must 
necessarily  include  the  power  to  preserve  them  after  so 
being  established;  the  power  to  coin  money,  the  power  to 
promote  science  and  arts,  and  the  power  to  make  all  laws 
necessary  to  promote  the  general  welfare  of  the  govern- 
ment is  sufficient,  when  delegated  by  the  people,  for  the 
foundation  of  a  code,  by  the  enforcement  of  which  the 


The  United  States  Constitution.  3 

liberty,  property,  and  life  of  individuals  is  taken  through 
the  process  of  the  Courts. 

§  4.  There  are  certain  well  known  guarantees  of  our 
republican  form  of  government  that  are  in  the  Constitu- 
tion, most  of  which  appear  in  the  respective  Constitutions 
of  the  various  states.    These  guarantees  are: 

(1)  The  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended,  unless  when  in  cases  of  rebellion  or 
invasion,  the  public  safety  may  require  it.  (Section  9, 
Article  I.,  Paragraph  2.) 

(2)  No  bill  of  attainder  or  ex  post  facto  law  shall  be 
passed.    (Sec.  9,  Art.  I.,  Par.  3.) 

(3)  The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury;  and  such  trials  shall  be  held  in 
the  state  where  the  said  crimes  shall  have  been  com- 
mitted; but  when  not  committed  within  any  state,  the 
trial  shall  be  at  such  place  or  places  as  the  Congress  may 
by  law  have  directed.     (Sec.  2,  Art.  III.,  Par.  3.) 

(4)  No  person  shall  be  convicted  of  treason,  unless 
on  the  testimony  of  two  witnesses  to  the  same  overt  act, 
or  on  confession  in  open  Court.  (Sec.  3,  Art.  III.,  Par. 
1.)  The  Congress  shall  have  power  to  declare  the  pun- 
ishment of  treason,  but  not  attainder  of  treason  shall  work 
corruption  of  blood  or  forfeiture,  except  during  the  life 
of  the  person  attained.    (Sec.  3,  Art.  III.,  Par.  2.) 

(5)  The  citizens  of  each  state  shall  be  entitled  to  all 
the  privileges  and  immunities  of  citizens  in  the  several 
states.  (Sec.  2,  Art.  IV.,  Par.  1.)  A  person  charged  in 
any  state  with  treason,  felony,  or  other  crime,  who  shall 
flee  from  justice  and  be  found  in  another  state,  shall,  on 
demand  of  the  executive  authority  of  the  state  from 
which  he  fled,  be  delivered  up,  to  be  removed  to  the  state 
having  jurisdiction  of  the  crime.     (Sec.  2,  Art.  IV.,  Par. 

2.) 

(6)  The  right  of  the  people  to  be  secure  in  their  per- 
sons, houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures  shall  not  be  violated;  and  no  war- 
rants shall  issue  but  upon  probable  cause,  supported  by 
oath  or  affirmation,  and  particularly  describing  the  place 
to  be  searched  and  the  persons  or  things  to  be  seized 


4  Federal.  Criminal  Law  Procedure. 

(Amendment  IV.)  Amendment  V.  guarantees  that  no 
person  shall  be  held  to  answer  unless  upon  presentment 
or  by  indictment,  and  that  no  person  shall  be  twice  put 
in  jeopardy  of  life  or  limb,  nor  compelled  in  any  criminal 
case  to  be  a  witness  against  himself,  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law; 
and  Amendment  VI.  guarantees  speedy  trial  in  the  prop- 
er jurisdiction,  that  he  shall  be  confronted  with  the  wit- 
nesses, be  represented  by  counsel,  and  himself,  entitled 
to  process  for  witnesses. 

(7)  Amendment  VIII.  provides  excessive  bail  shall 
not  be  required,  nor  excessive  fines  imposed,  nor  cruel 
and  unusual  punshment  inflicted. 

§  4a.  While  power  to  punish  for  contempt  committed 
in  the  presence  of  the  court,  existing  within  the  limits 
of  and  sanctioned  by  the  Constitution,  is  not  controlled 
by  the  limitations  of  the  Constitution  as  to  modes  of  ac- 
cusation and  methods  of  trial  generally  safeguarding  the 
rights  of  the  citizen,  judicial  authority  is  not  exempt 
from  Constitutional  limitations;  the  great  and  only  pur- 
pose of  the  power  being  to  secure  judicial  authority  from 
obstruction  in  the  performance  of  its  duties  to  the  end 
that  means  appropriate  for  the  preservation  and  enforce- 
ment of  the  Constitution  may  be  secured.  Ex  parte  Hudg- 
ings,  39  Supreme  Court  Eeporter,  337. 

An  amendment  to  the  Constitution  is  adopted  in  the 
Constitutional  way  and  the  Secretary  of  State  cannot  in- 
vestigate the  truth  of  such  amendment.  Ratification,  and 
not  proclamation,  governs,  hence  mandamus  as  to  the 
Secretary  of  State  does  not  lie.  U.  S.  vs.  Colby,  265  Fed., 
998. 

A  violation  of  Constitutional  provisions  presumes  in- 
jury and  such  injury  need  not  be  shown.  Davis  vs.  U. 
S.,  247  Fed.,  394. 

A  statute  which  declares  it  to  be  unlawful  to  make  an 
unreasonable  charge  for  an  article,  violates  the  Constitu- 
tional provision  which  declares  that  the  accused  shall  be 
informed  of  the  nature  and  cause  of  accusation.  Lam- 
born  vs.  U.  S.  Attorney,  265  Fed.,  944;  U.  S.  vs.  Bernstein, 
267  Fed.,  295;  Contra,  Weed  vs.  Lockwood,  266  Fed.,  785, 


The  United  States  Constitution.  5 

but  the  Supreme  Court  settled  the  conflict  in  1921  in  41 
Sup.  Ct.  Rep.  298,  holding  that  the  Lever  Act,  over  which 
most  of  these  decisions  arose,  was  unconstitutional  so  far 
as  the  matter  now  being  discussed  is  concerned.  II.  S.  v. 
Peoples,  217  F.  790. 

The  meaning  of  the  words  "two  witnesses,"  as  con- 
tained in  Section  3,  of  Article  3,  relating  to  the  crime  of 
treason,  is  that  it  is  necessary  to  produce  two  direct  wit- 
nesses to  the  whole  overt  act;  and  while  it  may  be  pos- 
sible to  piece  bits  together  of  the  overt  act,  yet  every 
part  must  have  the  support  of  two  oaths,  and  hence  con- 
viction cannot  be  had  on  the  testimony  of  one  witness 
together  with  circumstantial  evidence,  though  it  was 
well-nigh  conclusive.    U.  S.  vs.  Robinson,  259  Fed.,  685. 

Whatever  may  have  been  the  slight  vacillation  of  the 
courts  in  the  matter  of  the  violation  of  that  portion  of 
the  constitution  which  relates  to  unreasonable  searches 
and  seizures,  it  is  now  determined  that  there  may  be  no 
search  warrant  issued  unless  the  court  is  furnished  with 
facts  under  oath  and  premises  cannot  be  searched  by 
merely  curious  officers;  such  searches  may  be  made  only 
when  felonies  are  presently  prosecutable  and  cannot  be 
made  to  discover  whether  there  is  a  conspiracy  to  do 
some  unlawful  thing.    Veeder  vs.  U.  S.,  252  Fed.,  414.    _ 

An  affidavit  for  search  warrant  is  insufficient  which 
does  not  state  facts,  and  every  agent  cannot  give  consent 
to  an  illegal  search.    In  re  Tri-State,  253  Fed.,  605. 

An  illustration  of  what  is  an  "unreasonable"  search 
will  be  found  in  U.  S.  vs.  Premises,  246  Fed.,  185. 

The  rule  with  reference  to  evidence  that  is  secured 
by  unreasonable  searches  and  seizures  is,  that  such  evi- 
dence must  be  returned  upon  request  -..that  a  conviction 
secured  upon  such  evidence  or  through  such  evidence 
must  be  reversed.  U.  S.  vs.  Kraus,  270  Fed.,  578;  Flagg 
vs.  U.  S.,  233  Fed.,  481;  IT.  S.  vs.  Abrams,  230  Fed.,  313; 
IT.  S.  vs.  Friedburg,  233  Fed.,  313;  Ex  parte  Jackson, 
263  Fed.,  110. 

And  evidence  so  taken  will  not  support  an  indictment?" 
IT.  S.  vs.  Bush,  269  Fed.,  455. 

A  void  warrant  is  no  protection  against  a  charge  of 
false  imprisonment,  or  for  an  invasion  of  the  home  in 


6  Federal  Criminal.  Law  Procedure. 

violation  of  the  constitution.  Keichman  vs.  Harris,  252 
Fed.,  371;  U.  S.  v.  Kelih,  272  Fed.,  484. 

A  defendant  cannot  be  required  to  produce  private  pa- 
pers before  a  grand  jury,  as  this  would  be  compelling 
him  to  give  evidence  against  himself.  U.  S.  vs.  Brasley, 
268  Fed.,  59. 

See  also  post  sections  on  admissibility  of  documentary 
evidence  secured  illegally,  and  search  warrants. 

The  Supreme  Court,  in  the  case  of  Gouled  vs.  U.  S., 
41  Sup.  Ct.  Eep.,  261,  and  the  case  or  Amos  vs.  U.  S.,  41 
Sup.  St.  Rep.,  266,  held,  that  evidence  illegally  taken  by 
improper  searches  and  seizures  must  be  returned  and 
conviction  set  aside,  if  secured  thereon.  But  see  Miggins 
vs.  U.  S.,  272  Fed.,  41. 

See  also  U.  S.  vs.  Maresca,  266  Fed.,  713,  for  a  defini- 
tion of  probable  cause,  application  for  return  of  property, 
and  the  ordering  of  the  return  of  property  unlawfully 
taken.  See  also  U.  S.  vs.  Eay,  275  F.,  1004,  as  to  insuffi- 
ciency of  affidavit  based  on  belief  and  not  facts. 

An  officer  of  a  court  having  in  his  possession  or  under 
his  control  property  illegally  seized,  may  be  ordered  to 
return  such  property  if  it  was  unlawfully  taken  through 
search  and  seizure. 

A  subpoena  duces  tecum  is  not  an  unreasonable  search 
and  seizure  when  directed  to  the  officer  of  a  corporation 
amenable  to  such  process.  U.  S.  vs.  Watson,  266  Fed., 
736. 

A  bail  bond  that  has  been  forfeited  may  be  remitted 
under  Section  1020.  U.  S.  vs.  Jacobson,  257  Fed.,  760. 
See  also  U.  S.  vs.  Smaller,  275  F.  1011. 

An  administrative  officer  who  violates  the  law  and  the 
constitution  in  searching  premises  and  seizing  property 
may  not  be  ordered  by  a  court,  which  does  not  have  then 
before  it  a  justiciable  case,  to  return  the  same.  In  re 
Weinstein,  271  Fed.  5,  also  271  Fed.,  673.  The  rights  of 
such  a  sufferer  would  have  to  be  secured  through  an  in- 
dependent action  brought  by  him  for  damages  for  the 
trespass  and  for  such  other  relief  as  he  might  petition 
the  court  for. 


The  United  States  Constitution.  7 

Papers  which  are  in  the  possession  of  the  prosecuting 
officer  to  be  used  in  a  criminal  prosecution,  which  have 
been  illegally  seized,  must,  upon  application,  be  returned, 
and  if  the  trial  court  should  refuse  to  return  them  they 
would  be  incompetent  evidence  at  the  trial.  Weeks  vs. 
U.  S.,  232  U.  S.,  383.  In  Silverthrone  Lumber  Company 
vs.  U.  S.,  251  U.  S.,  385,  the  supreme  court  went  further 
and  held  that  the  prosecuting  officer  might  not  make  any 
use  whatsoever  of  evidence  so  obtained. 

Deportation  proceedings  are  administrative  and  officers 
who  make  illegal  searches  and  seizures,  even  though  such 
officers  be  from  the  department  of  justice,  they  may  not 
be  required  to  return  such  property  by  a  court  which 
does  not  have  the  case  before  it.  In  re  Weinstein,  271 
Fed.,  5. 

Leave  to  file  an  information  will  be  refused  by  the 
court  where  the  evidence  against  the  defendant  was  pro- 
cured by  an  unlawful  search.  U.  S.  vs.  Quaritius,  267 
Fed.,  227. 

Seizure  of  liquor  from  a  private  residence  prior  to 
the  taking  effect  of  constitutional  amendment,  18,  on  a 
search  made  without  a  warrant  by  officers  armed  with 
shot-guns  and  pistols,  although  there  was  "an  invitation 
to  enter  and  consent  to  the  seizure,"  held  unlawful,  and 
the  owner  of  the  liquor  held  entitled  to  its  return.  U.  S. 
vs.  Marquette,  271  Fed.,  120;  IT.  S.  vs.  Kelih,  272  Fed., 
484,  even  orders  return  of  still  when  so  unlawfully  taken. 

A  diary  kept  by  a  defendant  which  came  lawfully  into 
the  possession  of  the  government,  even  though,  the  de- 
fendant had  made  a  motion  to  have  the  same  returned 
to  him,  is  usable  in  evidence.  Pedersen  vs.  U.  S.,  271 
Fed.,  187.  Self  incrimination,  see  Elwell,  vs.  U.  S.,  275  F. 
775. 

Articles  illegally  seized  will  not  be  impounded,  but 
must  be  returned,  even  though  contraband.  U.  S.  vs. 
Porazzo,  242  Fed.,  276.  See  sec.  b.  See  also  U.  S.  vs. 
Lydecker,  275  F.  977. 

Indictment  for  resisting  officer  who  is  searching,  and 
seizure  must  show  such  actions  constitutional,  otherwise 
it  is  defective.    U.  S.  vs.  Hallowell,  271  Fed.,  795. 


8  Federal  Criminal  Law  Procedure. 

Search  warrant  and  affidavit  for  different  premises 
held  invalid.    U.  S.  vs.  Armstrong,  275  Fed.,  506. 

A  plea  in  abatement  interposed  by  the  defendant  on 
the  ground  that  the  indictment  was  procured  by  the 
wrongful  use  before  the  grand  jury  of  evidence  which 
was  obtained  by  an  illegal  search  and  seizure  of  private 
papers  and  documents  may  be  overruled  by  the  trial 
court,  if  he  considers  it  just  to  overrule  it,  without  fear  of 
reversal  since  Sec.  1011,  R.  S.  U.  S.  as  amended,  reads 
as  follows,  "there  shall  be  no  reversal  in  the  Supreme 
Court  or  in  a  circuit  court  upon  a  writ  of  error,  for 
error  in  ruling  any  plea  in  abatement,  other  than  a  plea 
to  the  jurisdiction  of  the  court,  or  for  any  error  in  fact." 
Mounday  vs.  U.  S.,  225  Fed.,  965. 

In  U.  S.  vs.  Mitchell,  274  Fed.,  128,  Judge  Dooling 
reviews  the  prohibition  statutes  and  the  Constitutional 
amendment  and  the  search  warrant  statutes,  and  then 
says  "it  is  not  merely  a  pro  forma  matter,  but  one  of 
utmost  importance,  that  search  warrants  should  be  prop- 
erly issued  in  the  first  instance.  They  should  not  be 
lightly  applied  for,  nor  lightly  issued,  as  they  trespass 
upon  the  most  important  rights  of  the  people." 

A  search  warrant  to  search  a  private  dwelling  should 
never  be  issued  until  the  issuing  officer  has  asked  "what 
evidence  have  you  that  this  place  is  being  used  for  the 
unlawful  sale  of  intoxicating  liquor?",  and  has  received 
evidence  of  such  transgression.  The  4th  Amendment  to 
the  Constitution  is  far  more  important  to  the  people  than 
the  conviction  of  one  who  has  violated  the  prohibition 
law. 

Evidence  illegally  obtained  is  inadmissible  and  in  the 
absence  of  other  evidence  a  directed  verdict  for  the  de- 
fendant is  proper.  Holmes  vs.  U.  S.,  275  Fed.,  49.  Also 
see  0 'Conner  vs.  Patter,  276  F.  32;  Berry  vs.  U.  S.,  275  F. 
680. 

Evidence  obtained  by  unlawful  search  is  inadmissible 
and  where  such  evidence  is  liquor  it  may  not  be  intro- 
duced in  evidence  nor  may  the  testimony  of  its  finding 
and  seizure  be  introduced,  and  this,  even  though  the  seiz- 


The  United  States  Constitution.  9 

ing  officers  are  a  sheriff  and  his  deputies  instead  of  United 
States  officers.    Dukes  vs.  U.  S.,  275  Fed.,  142. 

§  5.  Infamous  Crimes  as  Meant  in  Art.  V.  of  Constitu- 
tion.— In  re  Classen,  140  United  States,  205,  is  the  rank- 
ing Supreme  Court  decision  as  to  what  is  an  infamous 
crime,  and  that  case  hold  that  a  crime  which  is  punish- 
able by  imprisonment  in  a  state  prison  or  a  state  peni- 
tentiary, is  an  infamous  crime,  whether  or  not  the  accused 
is  sentenced  to  hard  labor;  and  the  determination  of  the 
question  rests  upon  what  the  statute  provides,  and  not 
upon  what  the  judge  imposes.  See  also  Fitzpatrick  vs. 
United  States,  178  U.  S.,  307;  McKnight  vs.  United 
States,  113  Fed.,  452;  Good  Shot  vs.  United  States,  154 
Fed.,  258;  Gritt  Garritee  vs.  Bond,  102  Maryland,  383; 
State  vs.  Nichols,  27  E.  I.,  83;  United  States  vs.  Wyrm, 
9  Fed.,  894;  ex  parte  Wilson,  114  United  States,  423; 
Mackin  vs.  United  States,  117  U.  S.,  351;  ex  parte  Mc- 
Clusky,  40  Fed.,  74;  Parkinson  vs.  United  States,  121 
U.  S.,  281;  ex  parte  Bain,  121  U.  S.  13,  United  States  vs. 
Cadwallader,  59  Fed.,  679;  United  States  vs.  Dewalt,  128 
U.  S.,  393. 

Section  335  of  the  new  Federal  Criminal  Code,  in  effect 
January  1,  1910,  contains  this  provision: 

"All  offenses  which  may  be  punished  by  death  or  imprisonment 
for  a  term  exceeding  one  year  shall  be  deemed  felonies;  all  other 
offenses  shall  be  deemed  misdemeanors." 

§  5a.  Section  1022  provides  that  all  crimes  and  of- 
fenses committed  against  the  provisions  of  Chapter  7, 
title  Crimes,  which  are  not  infamous,  may  be  prosecuted 
either  by  indictment  or  by  information  filed  by  a  district 
attorney.  It  was  held  in  U.  S.  vs.  Wells  Co.,  186  Fed., 
248,  that  a  prosecution  for  a  violation  of  the  Food  & 
Drugs  Act,  Section  2,  34  Stats.  L.  768,  for  shipping  adul- 
terated food,  wherein,  upon  conviction,  a  fine  not  exceed- 
ing $200  for  the  first  offense  and  for  each  subsequent 
offense  a  fine  not  exceeding  $300  or  imprisonment  not 
exceeding  one  year,  or  both,  in  the  discretion  of  the  Court, 
could  be  begun  by  information  for  the  reason  that  the 
offense  charged  was  not  a  felony  in  that  a  defendant  who 


10  Federal  Criminal  Law  Procedure. 

may  not  be  imprisoned  in  a  penitentiary  for  more  than 
one  year,  has  not  committed  a  felonious  offense. 

All  offenses,  therefore,  which  may  not  receive  punish- 
ment in  excess  of  one  year,  are  misdemeanors  and  no 
convicted  defendant  may  be  sent  to  a  penitentiary  unless 
his  punishment  exceeds  one  year. 

§  5b.  The  court  will  refuse  leave  to  file  an  informa- 
tion where  the  evdience  against  the  defendant  was  pro- 
cured by  an  unlawful  search.  U.  S.  vs.  Quaritus,  267 
Fed.,  227. 

While  it  is  the  established  practice  for  the  prosecuting 
officer  to  secure  leave  of  the  court  to  file  an  information 
yet  in  the  absence  of  a  challenge,  filing  without  permis- 
sion is  not  prohibited  by  the  constitution.  The  informa- 
tion must  allege  that  such  permission  has  been  granted. 
U.  S.  vs.  Simon,  248  Fed.,  980. 

A  violation  of  the  act  of  may  18,  1917,  which  is  com- 
monly known  as  the  Selective  Draft  Act,  may  be  in- 
stituted by  information.    U.  S.  vs.  Nelson,  254  Fed.,  889. 

The  Fifth  Amendment  to  the  Constitution  provides, 
"no  person  shall  be  held  to  answer  for  a  capital  or  other 
infamous  crime,  unless  on  presentment  or  indictment  by 
a  grand  jury,  except  in  cases  arising  in  the  land  or  naval 
forces  or  the  militia,  when  in  actual  service  in  time  of 
war  or  public  danger."  Section  5541  of  the  Eevised  Stat- 
utes of  the  United  States  provides,  that  where  any  per- 
son convicted  of  an  offense  against  the  United  States  is 
sentenced  for  a  period  longer  than  one  year,  the  court 
by  which  the  sentence  is  passed  may  order  the  sentence 
to  be  served  within  any  jail  or  penitentiary  within  the 
district  or  state  where  such  court  is  held,  the  use  of  a  jail 
or  penitentiary  is  allowed  by  the  Legislature  of  the  state 
for  that  purpose. 

In  the  case  of  Blanc  vs.  U.  S.,  258  Fed.,  921,  it  was 
held  that  prosecution  under  the  draft  act  for  keeping 
a  house  of  prostitution  could  be  begun  by  information. 
Also  Hunter  vs.  U.  S.,  272  Fed.,  235. 

Keeping  whiskey  for  illegal  sale  under  National  Pro- 
hibition Act  may  be  prosecuted  by  information.  Young 
rs.  U.  S.,  272  Fed.,  967. 


The  United  States  Constitution.  11 

§  6.  Jeopardy. — Each  American  citizen,  owing  allegi- 
ance to  two  governments,  state  and  national,  is  the  bene- 
ficiary of  both,  and  also  liable  to  the  pains  and  penalties 
of  both.  He  that  sells  whiskey  must  comply  with  both 
state  and  federal  laws,  and  a  conviction  or  acquittal  un- 
der the  laws  of  either  is  no  impediment  or  safeguard  to 
prosecution  from  and  by  the  other.  One  who  sells  whis- 
key without  taking  out  either  state  or  federal  license  is 
liable  to  prosecution  by  both  governments. 

The  Courts  have  held,  in  re  Boggs,  45  Federal,  475;  U. 
S.  vs.  Barnhart,  22  Federal,  290;  Fox  vs.  Ohio,  5  Howard, 
U.  S.,  434;  Moore  vs.  Illinois,  14  Howard,  U.  S.,  20,  that 
the  jeopardy  clause  in  the  Federal  Constitution  is  not  a 
limitation  upon  any  state  government,  but  I  do  not  under- 
stand such  holding  to  mean  that  if  one  were  put  in  jeop- 
ardy twice  by  the  state  machinery,  that  he  would  thereby 
be  precluded  from  raising  the  question.  While  the  jeop- 
ardy clause  in  the  Federal  Constitution  was  doubtless 
intended  to  relate  to  trials  in  the  Federal  courts,  I  am 
sure  that  the  constitutional  guarantee  could  be  success- 
fully relied  upon  by  a  citizen  of  a  state,  if  the  effort  were 
made  to  place  him  in  jeopardy  twice  by  the  state  govern- 
ment. 

It  will  be  borne  in  mind  that  a  former  conviction  or  ac- 
quittal must  be  pleaded,  and  the  protection  is  as  ample 
whether  the  former  trial  resulted  in  a  conviction  or  an  ac- 
quittal. United  States  vs.  Wilson,  7  Peters,  159;  United 
States  vs.  Ball,  163  U.  S.,  662;  ex  parte  Glenn,  111  Fed- 
eral, 261. 

§  6a.  Identity  of  Offense  Must  be  Shown. — Louie  vs. 
U.  S.,  218  Fed.,  36. 

§  6b.  Jeopardy  Continued. — A  conviction  by  a  court- 
martial  prevents  a  conviction  by  the  United  States  Dis- 
trict Court.    U.  S.  vs.  Block,  262  Fed.,  205. 

A  conviction  in  a  state  court  will  sometimes  bar  one  in 
the  federal  court,  was  held  by  the  district  court  in  the 
case  of  U.  S.  vs.  Porria,  255  Fed.,  172.  Where  the  de- 
fendant had  been  convicted  in  a  state  court  on  an  indict- 
ment charging  him  with  receiving  and  aiding  in  conceal- 
ing stolen  property,  such  property  being  the  same  as  that 


12  Federal  Criminal  Law  Procedure. 

which  the  federal  indictment  alleged  he  had  stolen  from 
an  interstate  commerce  shipment  and  in  the  second  connt 
of  which  he  was  charged  with  having  it  in  his  possession, 
such  federal  indictment  was  barred  by  the  state  convic- 
tion. The  court  quotes  Sec.  8604,  U.  S.  Statutes,  1916,  ' '  a 
judgment  of  conviction  or  acquittal  on  the  merits  under 
the  laws  of  any  state  shall  be  a  bar  to  any  subsequent 
prosecution " 

See  also  Gavieres  vs.  U.  S.,  220  U.  S.,  338;  55  law  edi- 
tion, 489. 

It  is  not  jeopardy  to  convict  one  who  broke  open  a  post- 
office  for  both  larceny  and  breaking  and  entering.  Mor- 
gan vs.  Sylvester,  231  Fed.,  886. 

It  is  not  a  denial  of  "due  process"  as  guaranteed  by 
the  fifth  and  sixth  amendments  to  withdraw  a  case  and 
re-submit  it.  Lovata  vs.  State  of  New  Mexico,  242  U.  S., 
199. 

The  changing  of  a  judge,  by  the  consent  of  the  defend- 
ant, and  the  continuance  of  the  trial  under  the  new  judge, 
which  proceedings  were  subsequently  set  aside  as  nul- 
lities, would  not  constitute  jeopardy.  Freeman  vs.  U.  S., 
237  Fed.,  815. 

Conviction  under  State  Statutes  not  a  bar  to  prosecu- 
tion under  Federal  Statute  for  same  act.  U.  S.  vs.  Rota- 
gczak,  275  Fed.,  558. 

An  acquittal  by  reason  of  a  variance  is  not  jeopardy, 
was  held,  in  U.  S.  vs.  Phelan,  250  Fed.,  927. 

A  conviction  of  murder  in  the  first  degree  and  a  "with- 
out capital  punishment,"  recommendation  by  the  jury,  is 
not  an  acquittal  of  first  degree  murder,  and,  upon  another 
trial  and  conviction  the  defendant  may  be  given  a  death 
sentence.  Stroud  vs.  U.  S.,  251  U.  S.,  15;  40  supreme 
court  reporter,  50.  A  prosecution  of  a  stockholder  and 
director  of  a  corporation  is  not  a  bar  to  subsequent  pro- 
ceedings to  forfeit  the  oleomargarine.  U.  S.  Manufactur- 
ing Company,  240  Fed.,  235. 

A  prosecution  on  a  defective  indictment  would  not 
bar  a  subsequent  prosecution,  where  there  was  no  ac- 
quittal on  the  merits,  when  the  court,  upon  the  defects 
being  called  to  his  attention,  after  the  close  of  the  testi- 


The  United  States  Constitution.  1 


•  > 


niony  and  the  arguments  to  the  jury,  discharged  the  jury. 
Simpson  vs.  U.  S.,  229  Fed.,  940.  ' 

A  plea  of  former  acquittal  should  establish  identity 
of  offenses  and  when  such  identity  is  established  all  of 
the  elements  that  enter  into  the  original  charge  are  barred 
to  further  prosecution.    U.  S.  vs.  Clavin,  272  Fed.,  985. 

A  test  by  which  is  determined  a  plea  of  former  jeop- 
ardy is  whether  if  what  is  set  out  in  the  second  indict- 
ment had  been  proved  under  the  first  it  would  have  sup- 
ported a  conviction,  and,  if  it  would,  the  second  cannot 
be  maintained.    Manning  vs.  U.  S.,  275  Fed.,  29. 

§  7.  Witness  Against  Self. — That  clause  of  Amend- 
ment V.,  which  declares  that  no  person  shall  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself,  is 
not  limited  to  the  defendant.  It  is  a  privilege  that  can 
be  claimed  by  any  witness.  Counselman  vs.  Hitchcock, 
142  U.  S.,  562;  U.  S.,  vs.  Collins,  145  Federal,  711;  in  re 
Hess,  134  Federal,  111;  United  States  vs.  Praeger,  149 
Federal,  484;  Hale  vs.  Henkel,  201  U.  S.,  67;  Jack  vs. 
Kansas,  199  U.  S.,  381;  Burrell  vs.  Montana,  194  U.  S., 
578;  Ballman  vs.  Fagin,  200  U.  S.,  195;  Edelstein  vs. 
United  States,  149  Federal,  642;  United  States  vs.  Simon, 
L46  Federal,  92;  in  re  Briggs,  135  N.  C,  122;  U.  S.  vp 
Price,  163  Fed.,  904. 

There  is  nothing  more  barbarous  than  to  compel  dis- 
closures which  will  degrade  and  convict  the  person  so 
compelled.  Voluntary  appearance  no  violation  or  depri- 
vation of  constitutional  guarantee.  Pendleton  vs.  U.  S., 
216  U.  S.,  305.  See  also  sec.  20.  See  also  Elwell  vs.  U.  S., 
275  F.  775. 

Section  860  of  the  Revised  Statutes  of  the  United  States 
provides  that  no  pleading  of  a  party  nor  any  discovery  or 
evidence  obtained  from  a  party  or  a  witness  by  means  of 
a  judicial  proceeding  in  this  or  any  foreign  country  shall 
be  given  in  evidence  or  in  any  manner  used  against  him 
or  his  property  or  his  estate  in  any  Court  of  the  United 
States  in  any  criminal  proceeding  or  for  the  enforcement 
of  any  penalty  or  forfeiture.  An  interesting  case,  show- 
ing the  extent  of  the  doctrine  and  the  care  with  which 
the  Courts  have  preserved  it,  is  McKnight  vs.  the  United 


34  Federal  Criminal  Law  Procedure. 

States,  115  Federal,  981.  In  that  case,  the  Circuit  Court 
of  Appeals  for  the  Sixth  Circuit  condemned  as  unconsti- 
tutional a  demand  by  the  District  Attorney  of  the  de- 
fendant for  the  original  of  a  paper  in  evidence. 

As  to  immunity  from  prosecution  because  of  testimony 
before  Grand  Jury,  see  U.  S.  vs.  Heike,  175  Fed.,  852. 
When  such  is  plead  in  bar  burden  is  on  the  defendant,  for 
discussion  thereon  see  same  case. 

§  7a.  Continued. — See  Section  39a.  Section  860  of  the 
Revised  Statutes  was  repealed  by  the  Act  of  May  7,  1910, 
Chapter  216,  36  Stats.  L.  352,  and  the  protection  original- 
ly afforded  by  it  comes  now  directly  from  the  fourth  and 
fifth  amendments  to  the  Constitution  of  the  United  States. 
In  fact  Section  860  was  narrower  in  its  protection  than 
are  the  amendments.  American  Lithographic  Co.  v. 
Werckmeister,  221  U.  S.,  603. 

The  Supreme  Court  of  the  United  States  in  re  Harris, 
221  U.  S.,  274,  determined  in  substance  that  a  bankrupt 
is  not  deprived  of  his  Constitutional  right  not  to  testify 
against  himself  by  an  order  requiring  him  to  surrender 
his  books  to  the  duly  authorized  receiver. 

This  decision  was  made  in  the  face  of  facts  which  were, 
in  substance,  that  the  bankrupt  had  declined  to  testify 
concerning  a  certain  written  statement  of  his  assets  and 
liabilities,  on  the  ground  that  it  might  tend  to  incriminate 
him,  and  he  also  refused  to  produce  his  books  and  made 
oath  that  the  books  contained  evidence  that  might  tend 
to  criminate  him.  The  bankrupt  relied  upon  the  fifth 
amendment  and  Counselman  v.  Hitchcock  in  142  U.  S., 
547,  but  the  Court  said  "If  the  order  to  the  bankrupt 
standing  alone  infringed  his  Constitutional  rights,  it 
might  be  true  that  the  provisions  intended  to  save  them 
would  be  inadequate  and  nothing  short  of  statutory  im- 
munity would  suffice.  But  no  Constitutional  rights  are 
touched.  The  question  is  not  of  testimony,  but  of  sur- 
render— not  of  compelling  the  bankrupt  to  be  a  witness 
against  himself  in  a  criminal  case,  present  or  future,  but 
of  compelling  him  to  yield  possession  of  property  that  he 
no  longer  is  entitled  to  keep.  If  a  trustee  had  been  ap- 
pointed, the  title  to  the  books  would  have  vested-in  him 


The  United  States  Constitution.  15 

by  the  express  terms  of  Section  70  and  the  bankrupt  could 
not  have  withheld  possession  of  what  he  no  longer  owned 
on  the  ground  that  otherwise  he  might  be  punished. 
That  is  one  of  the  misfortunes  of  bankruptcy  if  it  follows 
crime.  The  right  not  to  be  compelled  to  be  a  witness 
against  one's  self  is  not  a  right  to  appropriate  property 
that  may  tell  one's  story.  As  the  bankruptcy  court  could 
have  enforced  title  in  favor  of  the  trustee,  it  could  en- 
force possession  ad  interim  in  favor  of  the  receiver, 
Section  2.  In  the  properly  careful  provision  to  protect 
from  use  of  the  books  in  aid  of  prosecution,  the  bankrupt 
got  all  that  he  could  ask." 

In  the  above  case  the  Supreme  Court  merely  decides 
that  a  bankrupt  may  not  retain  possession  of  his  books, 
the  title  to  which  is  vested  in  his  trustee,  on  the  ground 
that  they  contain  matters  which  would  subject  him  to 
criminal  prosecution,  but  the  decision  does  not  lessen  in 
any  degree  the  protection  of  the  amendments  of  the  Con- 
stitution about  which  we  are  talking.  In  other  words, 
having  secured  such  books,  from  which  the  sovereignty 
would  gather  data  to  support  a  prosecution  against  the 
bankrupt,  such  sovereignty  would  be  precluded  from  the 
use  of  such  testimony  on  the  ground  that  the  defendant 
was  forced  to  produce  the  same. 

In  U.  S.  vs.  Bhodes,  212  Fed.,  518,  it  was  held  that  the 
law  is  well  settled  that  the  Constitutional  provision  that 
no  man  shall  be  compelled  to  be  a  witness  against  himself 
enables  a  person,  under  ordinary  circumstances,  to  refuse 
not  only  to  give  oral  testimony,  but  to  produce  his  books 
and  papers,  on  the  ground  that  they  would  tend  to  in- 
criminate him.  Boyd  vs.  U.  S.,  116  U.  S.  616.  And  it  is 
held  that  a  bankrupt,  as  well  as  any  other  person,  is 
entitled  to  the  protection  of  such  Constitutional  provision. 
In  re  Canter  &  Cohen,  117  Fed.,  356;  in  re  Dow's  Estate, 
105  Fed.,  889.  But  evidence  proposed  to  be  used  in  a 
perjury  prosecution  against  a  bankrupt  secured  by  the 
force  of  the  bankrupt  statute  is  not  permitted  by  law  to 
be  so  used,  under  the  Constitutional  provision  referred 
to,  as  well  as  bv  that  of  the  bankrupt  law.  In  re  Harris, 
164  Fed.  292. 


16  Federal  Criminal,  Law  Procedure. 

Sub-division  9  of  Section  7  of  the  Bankrupt  Act  of  1898 
and  the  immunity  afforded  by  it  are  not  applicable  to  a 
prosecution  for  perjury  committed  by  a  bankrupt  when 
examined  under  it.  The  Constitutional  guaranty  of  the 
fifth  amendment  does  not  deprive  the  •  law-making  au- 
thority of  the  power  to  compel  the  giving  of  testimony, 
even  though  the  testimony,  when  given,  may  serve  to  in- 
criminate the  witness,  provided  complete  immunity  be 
accorded.  The  sanction  of  an  oath  and  imposition  of 
punishment  for  false  swearing  are  inherent  parts  of  the 
power  to  compel  giving  testimony  and  are  not  obviated 
by  immunity  as  to  self-incrimination.  The  immunity 
afforded  by  the  fifth  amendment  relates  to  the  past;  it 
is  not  a  license  to  the  person  testifying  to  commit  perjury 
either  under  the  provisions  as  to  the  giving  of  testimony 
in  Section  860  of  the  Revised  Statutes  or  of  the  Bank- 
ruptcy Act  of  1898.  The  provisions  in  the  Bankruptcy 
Act  compelling  testimony  do  not  confer  an  immunity  wid- 
er than  that  conferred  by  the  Constitution.  Glickstein 
vs.  U.  S.,  222  U.  S.,  139. 

The  Glickstein  case  was  a  prosecution  for  perjury  com- 
mitted by  the  defendant  upon  his  examination  before  the 
first  meeting  of  his  creditors,  and  the  proposition  that 
the  Supreme  Court  announces  is  merely  that  Congress 
had  a  right  to  compel  the  bankrupt  to  disclose  all  matters 
relating  to  his  business,  but  to  disclose  them  truthfully, 
and  if  he  saw  fit  to  perjure  himself  upon  such  disclosure, 
he  could  be  made  to  suffer  the  penalty  of  a  prosecution 
for  perjury.  Had  he  testified  upon  such  forced  examina- 
tion about  facts  that  were  the  truth,  such  testimony  could 
not  thereafter  have  been  used  against  him  in  either  a 
civil  or  a  criminal  cause  for  the  reason  that  the  testi- 
mony was  not  voluntary. 

To  the  same  effect  is  the  decision  in  Dreier  vs.  U.  S., 
221  U.  S.,  394,  which  was  a  contempt  proceeding  to  re- 
quire Dreier  to  produce  certain  books  of  a  corporation 
which  were  in  his  possession  and  which  he  refused  to 
produce  on  the  ground  that  they  would  incriminate  him. 
The  court  held  that  Dreier  was  not  entitled  to  refuse  the 
production  of  the  corporate  records.     By  virtue  of  the 


The  United  States  Constitution.  17 

fact  that  they  were  the  documents  of  the  corporation  in 
his  custody  and  not  his  private  papers,  he  was  under  ob- 
ligation to  produce  them  when  called  for  by  the  proper 
process.  See  also  Wilson  vs.  U.  S.,  221  U.  S.,  361;  Hale 
v.  Henkel,  201  U.  S.,  43. 

In  Cameron  vs.  U.  S.,  192  Fed.,  548,  the  Circuit  Court 
of  Appeals  for  the  Second  Circuit  held  that  Section  860 
shall  not  exempt  a  bankrupt  from  prosecution  for  per- 
jury in  giving  evidence  in  his  bankruptcy  proceedings, 
nor  does  it  prevent  the  introduction,  in  support  of  such 
a  charge,  of  the  false  statement  and  so  much  of  the  other 
part  of  the  accused's  testimony  as  may  be  necessary  to 
make  the  charge  intelligible. 

In  Powers  vs.  U.  S.,  223  U.  S.,  303,  the  Supreme  Court 
held  that  when  the  accused  voluntarily  becomes  a  witness 
in  his  own  behalf  before  a  commission  it  is  not  essential 
to  the  admissibility  of  his  testimony  that  he  be  first 
warned  that  what  he  says  may  be  used  against  him  and 
it  is  of  no  avail,  after  he  has  testified  voluntarily  and  un- 
derstandingly,  to  thereafter  make  a  motion  to  exclude  his 
testimony  by  way  of  a  privilege  under  the  fifth  amend- 
ment, because  the  defendant  voluntarily  testifying  waives 
his  privilege  and  may  be  fully  cross-examined  as  to  the 
testimony  given. 

The  President  cannot  compel  one  to  accept  a  pardon.  A 
pardon  to  be  effective  must  be  accepted,  and  the  tender 
of  a  pardon  does  not  destroy  the  privilege  of  a  witness 
against  self  incrimination.  He  may  reject  the  pardon 
and  refuse  to  testify  on  the  ground  that  his  testimony 
may  have  an  incriminating  effect.  Burdick  vs.  U.  S., 
236  U.  S.,  79,  overruling  U.  S.  vs.  Burdick,  211  Fed.,  493. 

Interstate  Commerce  Commission  has  power  to  compel 
attendance  and  testimony  of  witnesses,  and  witness  has 
immunity  under  Act  February  11,  1893,  even  though 
government  does  not  inquire  of  him  whether  he  claims 
privilege.  This  question  raised  on  demurrer.  U.  S.  vs. 
Skinner,  218  Fed.,  871. 

§  7b.  This  clause  of  the  constitution  is  operative  in 
civil  as  well  as  criminal  cases.  Woodmen  vs.  Bailev,  183 
S.  W.,  107. 

2 


18  Federal  Criminal  Law  Procedure. 

A  notice  to  a  defendant  in  a  criminal  case  to  produce 
documents  is  not  permissible.  Hanish  vs.  U.  S.,  227  Fed., 
584;  Green  vs.  U.  S.,  266  Fed.,  779. 

A  witness  before  a  federal  grand  jury  cannot  urge  ob- 
jections of  incompetency  and  irrelevanvy  to  questions 
which  a  party  might  urge,  and,  he  may  be  required  to 
testify,  subject  only,  to  the  constitutional  exemptions 
against  self  incrimination.  Blair  vs.  U.  S.,  250  U.  S.,  273; 
39  Sup.  Ct.  Eep.,  468. 

The  danger  of  self  incrimination  must  be  real.  Mason 
vs.  U.  S.,  244  U.  S.  362.  Whether  a  witness  must  answer 
is  determinable  by  the  trial  court  in  the  exercise  of  its 
sound  discretion  and  unless  there  is  reasonable  ground, 
distinct  from  a  remote  or  speculative  possibility,  to  ap- 
prehend that  a  direct  answer  may  prove,  dangerous  to 
the  witness,  his  answer  should  be  compelled. 

The  fifth  amendment  is  violated  by  the  white  slave  act 
which  requires  certain  reports.  U.  S.  vs.  Loinbardo,  228 
Fed.  980. 

Where  testimony  vital  to  conviction  is  given  under  du- 
ress, no  conviction  based  thereon  will  be  permitted  to 
stand.    Ford  vs.  U.  S.  259  Fed.  552. 

A  district  attorney  has  no  authority  to  make  an  agree- 
ment with  a  defendant  where  the  case  is  not  within  any 
statue.    U.  S.  vs.  Ford  99  U.  S.  594. 

A  person  charged  as  a  defendant  may  be  in  such  con- 
dition of  duress  that  the  court  may  infer  that  he  was 
"compelled,"  as  the  word  is  used  in  the  constitution, 
from  the  very  fact  that  he  is  brought  before  the  jury 
and  thereupon  gives  evidence.  U.  S.  vs.  Kimball,  117 
Fed.  161. 

Immunity  by  reason  of  having  testified  before  a  grand 
jury  may  or  may  not  follow,  since  one  may  claim  his  priv- 
ilege, and  his  ignorance  of  such  right  would  not  neces- 
sarily entitle  him  to  claim  immunity.  U.  S.  vs.  Bryant, 
245  Fed.  "682. 

A  compulsory  attendance  before  a  pension  examiner 
saves  a  witness  from  prosecution  because  immunity  fol- 
lows. Section  860  of  the  Revised  Statutes  offering  a 
certain  sort  of  immunity  is  not  as  broad  as  the  constitu- 


The  United  States  Constitution.  19 

tional  protection  afforded  by  the  fifth  amendment,  and 
the  witness  is  not  compelled  to  answer.  U.  S.  vs.  Bell, 
81  Fed.  830. 

§  8.  Amendment  VI.  of  the  Constitution  means  a 
trial  by  a  common  law  jury,  which  consisted  of  twelve 
men,  Maxwell  vs.  Dow,  176  U.  S.  586;  Thompson  vs. 
Utah,  170  U.  S.,  349,  and  to  such  a  hearing  as  the  terms 
and  rules  of  the  Court  permit,  Beavers  vs.  Haubert,  198 
U.  S.,  86,  and  to  such  an  explanation  of  the  offense 
charged  as  to  afford  the  defendant  ample  pj'otection 
from  any  subsequent  prosecution  and  to  enable  him  to 
make  his  defense  in  the  present  one,  United  States  vs. 
Cruickshank,  92  U.  S.,  557;  United  States  vs.  Martin- 
dale,  146  Federal.  291;  United  States  vs.  Green,  136 
Federal,  641;  Fitzpatrick  vs.  United  States,  178  U.  S., 
309;  Terry  vs.  United  States,  120  Federal,  486;  Milby 
vs.  United  States,  149  Federal,  641;  Bartlett  vs.  United 
States,  106  Federal,  885.  It  is  not  necessary,  however, 
to  furnish  a  copy  of  the  indictment  to  the  defendant, 
United  States  vs.  Vanduzee,  140  U.  S.,  173;  United 
States  vs.  Jones,  193  U.  S.,  530;  Balliet  vs.  United  States, 
129  Federal,  689,  unless  the  prosecution  is  for  treason 
or  other  capital  offense,  in  which  event  Section  1033  of 
the  Revised  Statutes  of  the  United  States  provides  the 
procedure,  which  includes  a  copy  of  the  indictment  for 
the  defendant.  The  only  exceptions  to  the  guarantee 
that  the  defendant  shall  be  confronted  with  the  witness 
against  him  are  the  introduction  of  dying  declarations 
and  the  introduction  of  the  testimony  of  a  deceased  wit- 
ness who  was  sworn  upon  a  former  trial,  and  the  testi- 
mony taken  in  stenographic  form,  such  testimony  to  be 
supported  by  the  oath  of  the  stenographer,  Kirby  vs. 
United  States,  174  U.  S.,  61;  West  vs.  Louisiana,  142 
Federal,  4;  Flynn  vs.  People,  222  Illinois,  309;  Robert- 
son vs.  Baldwin,  165  U.  S.,  281;  Mattox  vs.  United  States, 
156  U.  S.,  240;   Motes  vs.  United  States,  178  U.  S.,  471. 

Section  878  of  the  Revised  Statutes  of  the  United 
States  authorizes  the  issuing  of  process  for  indigent  de- 
fendants when  such  defendants  make  affidavit  in  ac- 
cordance therewith,  but  a  rule  of  the  Court  limiting  such 
witnesses  to  four  is  not  unreasonable. 


20  Federal  Criminal  Law  Procedure. 

§  8a.  A  defendant  cannot  consent  to  a  trial  by  less 
than  twelve  jurors  in  Texas  in  a  state  court  in  a  felony 
case  and  to  allow  the  defendant  to  do  so  is  fatal  error. 
Dunn  vs.  State,  224  S.  W.  893. 

Since  the  order  for  the  drawing  of  jurors  may  be  made 
by  the  judge  in  chambers  it  is,  therefore,  valid  for  a 
judge  to  make  an  order  for  the  drawing  of  jurors  in  a 
district  other  than  the  district  in  which  the  jurors  are 
to  be  drawn.    Apgar  vs.  U.  S.  255  Fed.  16. 

The  drawing  of  the  jury  must  be  done  in  accordance 
with  the  statute  and  an  assistant  attorney,  who  does 
what  the  clerk  ought  to  do  makes  the  drawing  illegal. 
U.  S.  vs.  Murphy,  224  Fed.  554.  The  act  was  amended 
on  February  3,  1917,  so  as  to  allow  a  deputy  clerk  to 
draw  the  jury  as  well  as  the  clerk. 

A  marshal  is  presumed  to  be  without  favor  but  when 
he  hires  a  private  detective  out  of  his  own  funds  he  is 
not  indifferent.    Johnson  vs.  XL  S.  247  Fed.  92. 

The  duties  of  selecting  person  to  act  as  a  grand  or  petit 
juror  must  be  performed  by  the  person  authorized  by 
the  statute  to  make  such  selection  and  cannot  be  dele- 
gated to  courts;  and  when  the  clerk  did  not  participate 
in  the  selection  of  the  jury  as  required  by  36  Stat.,  at 
Sec.  1164,  the  error  was  prejudicial  and  an  indictment 
found  by  a  grand  jury  so  directed  must  be  set  aside  as 
the  error  is  not  a  mere  matter  of  form.  Dunn  vs.  U.  S. 
238  Fed.  508. 

Judicial  Code  277,  providing  that  ''jurors"  shall  be 
returned  from  such  parts  of  the  district  from  time  to 
time  as  the  court  shall  direct,  so  as  to  be  most  favorable 
to  an  impartial  trial,  and  so  as  not  to  incur  unnecessary 
expense  or  unduly  burden  the  citizens  of  any  part  of  the 
district  with  such  service,  held,  applicable  to  grand 
jurors  as  well  as  petit  jurors.  Williams  vs.  U.  S.,  275 
Fed.  129. 

§  8b.  In  section  8,  above,  are  cited  cases  which  de- 
fine and  declare  exceptions  to  the  constitutional  guaran- 
tee that  the  defendant  shall  be  confronted  with  the  wit- 
ness; to  that  list  may  now  be  added  the  case  of  Bergin 
vs.  State,  188  S.  W.  423,  where  it  was  held  that  the  testi- 


The  United  States  Constitution.  21 

mony  of  one  given  at  a  former  trial  with  due  oppor- 
tunity for  cross  examination  is  admissible  on  a  subse- 
quent trial  after  death  of  such  witness. 

§  8c.  In  the  federal  court  a  copy  of  the  indictment^ 
in  cases  other  than  capital  and  treason  may  not  be  fur- 
nished to  the  defendant  by  the  government;  a  rule  of  ' 
the  district  attorney's  office,  denying  a  list  of  the  jury 
until  two  days  before  trial  in  all  cases  less  than  capital 
Ts^sustained  in  the  case  of  Hendrickson  vs.  U.  S.  249 
Fed.  34. 

§  9.  It  is  well  for  the  attorney  whose  practice  has 
been  largely  confined  to  the  state  courts  to  ever  bear  in 
mind  that  the  rules  and  forms  of  practice  and  methods 
of  pleading  that  are  adopted  by  Federal  Statute  for  pro- 
cedure in  the  Federal  Courts,  do  not  apply  to  any  ex- 
tent in  the  trial  of  Federal  criminal  law.  It  is  entirely 
immaterial  what  the  state  statutes  provide  with  refer- 
ence to  procedure  in  criminal  cases,  so  far  as  the  Fed- 
eral Courts  are  concerned.  The  Federal  statutes  alone 
control  in  criminal  matters.  In  Logan  vs.  United  States, 
144  U.  S.,  301,  the  Supreme  Court  held  that  even  Section 
858  of  the  Revised  Statutes  of  the  United  States,  which, 
in  its  concluding  paragraph,  seems  to  program  the  Hue 
of  competency  for  witnesses  in  the  Courts  of  the  United 
States  did  not  relate  to  criminal  trials  or  witnesses  in 
criminal  cases.    The  Court  in  that  case  said: 

"For  the  reasons  above  stated  the  provisions  of  Section  858  of  the 
Revised  Statutes,  that  'the  laws  of  the  state  in  which  the  court  is 
held  shall  be  the  rules  of  decision  as  to  competency  of  witnesses  in 
the  Courts  of  the  United  States,  in  trial  at  common  law  and  in  equity 
and  admiralty,'  has  no  application  to  criminal  trials;  and,  therefore, 
the  competency  of  witnesses  in  criminal  trials  in  the  Courts  of  the 
United  States is  not  governed  by  a  statute  of  the  state." 

Criminal  cases  in  the  Federal  courts  are  governed  and 
controlled  by  Federal  statutes  and  Federal  decisions, 
and  state  statutes  and  state  decisions  are  inapplicable. 
Jones  vs.  United  States,  162  Fed.,  419;  United  States  vs. 
Reid,  12  Howard,  363;  Starr  vs.  United  States,  153  U. 
S.,  625;    Jones  vs.  United  States,  137  U.  S.,  211;    Sim- 


22  Federal  Criminal,  Law  Procedure. 

mons  vs.  United  States,  142  U.  S.,  148;  Lang  vs.  United 
States,  133  Fed.  204;  U.  S.  vs.  Davis,  103  Fed.  457;  U.  S. 
vs.  Hall,  53  Fed.,  353;  U.  S.  vs.  Stone,  8  Fed.  239. 

§  9a.  There  is  no  common  law  jurisdiction  in  federal 
courts.    Oliver  vs.  U.  S.  230  Fed.  971. 

The  federal  courts  in  criminal  procedure  do  not  fol- 
low the  practice  of  the  courts  of  the  states  in  which  they 
sit.    Myres  vs.  U.  S.  256  Fed.  779. 

State  statutes  relating  to  criminal  procedure  have 
no  application  to  prosecutions  in  the  Federal  courts.  U. 
S.  vs.  Bopp,  232  Fed.  177. 


CHAPTER  II. 

GENERAL  PROVISIONS  APPLICABLE  TO  THE  PRACTICE. 

§  10.     Judicial  Code  and  the  Courts. 
10a.  Trial— public. 
10b.  TriaWPublic. 
10c.  Constitutional  Trial. 

11.  U.  S.  Commissioners. 
11a.  Contempts. 

lib.  Contempt   Defined. 

lie.  Contempt  pendente   lite. 

lid.  Illustrative  Contempts. 

12.  Prosecution    Begun    by    Indictment. 
12a.  Illustrations  of  Information   Beginnings. 

13.  Grand   Jury   and   Indictment. 

13a.  Grand    Jury    and    Indictment — Continuea. 

13b.  Copy   of  the   Indictment. 

13c.  Evidence    before    Grand    Jury. 

13d.  Motion    to    Quash    Indictment    or    Other    Dilatory    Plea. 

13e.  Information. 

13f.    Politics  of  grand  jury;     District  found   in,  etc. 

13g.  Stenographic  notes;     Objections  to  indictment. 

13h.  Illegal   evidence   before   grand   jury. 

14.  Preliminary  Proceedings. 
14a.  Warrant   to  Issue — When. 

14aa.  Warrant   to   issue,   When — Continued :     Also   notary   Unknown 

in  U.  S.  Law. 
14b.     Question  of  Indictment  on  Removal. 
14bb.  On  Removal. 
14c.  Arraignment. 

15.  Bail  Bond — Recognizance — Action  thereon. 
15a.  Bail  During  Trial. 

15aa.  Bond,  forfeiture,  relief. 

16.  Challenges. 

16a.  Consolidation   of   Indictments. 

16aa.  Consolidation   of   indictments — Continued. 

16b.  Impeachment  of  Verdict  by  Juror. 

17.  Indictment  and  Return  of  Same. 
17a.  Endorsement    on    Indictments. 

17aa.  Indictment — Place  of  finding:    Absence  of  Judge:     Counts. 

18.  Consolidation   of   Indictments. 

19.  Question   of   Duplicity   in   Indictment. 
19a.  Duplicity — Continued. 

20.  Confessions. 

20a.  Confessions — Continued. 
20b.  Confession — Continued. 

(23) 


24  Federal  Criminal  Law  Procedure. 

§  21.     Admissibility  of  Documentary  Evidence  Secured  Illegally. 
21a.  Method    for    Recovery    of    Illegally    Secured    Evidence. 
21aa.  Method  for  recovering  illegally  secured  evidence,  continued. 
21b.  Production    of    Documents. 
21bb.  Production  of  Documents,  continued. 

22.  Comments  or  Improper  Argument  of  District  Attorney. 

22a.  Procedure   When    Improper   Argument   or   Remarks   are   Made. 
22b.  Instances  of  Improper  Remarks  and  of  Remedies  therefor. 

23.  Prosecuting  Officer  in   Grand  Jury  Room;     Limits  of  his 

Expression. 
23a.  Misconduct — How  raised. 

24.  Jury — Right    of — Waiver — Necessity    for    Full    Number — Illegal 

to  Try  with  Eleven. 
24a.  Comments  by  the  Court. 
24b.  Comments  and  attitude  of  the  court. 

25.  Care    of    Jury — Moral    Weight    of    Verdict;      Legal    Weight    of 

Verdict;  Newspapers  with  Jury — attempts  to  Influence  Ver- 
dict. 

25a.  Care  of  jury,  continued. 

25aa.  Setting  aside  verdict. 

26.  Evidence  of  Good  Character — Charge  on  Presumption  Thereof. 
^  26a.  Good  Character  Becomes  a  Fact. 

26b.  Charge  on,  Refused  When. 

26bb.  Charge   on   good   character. 

26c.  Proof  of  Other  Offense. 

26d.  Proof  of  other  offenses,  Continued. 

26e.  Good   character   not   presumed. 

27.  Instructions    of    the    Court,    whether    Written    or    Oral,    Special 

Instructions. 
27a.  Instruction  of  the  Court,  Continued. 
27b.  Exceptions  to  Charge  after  Jury  retired. 
27c.  Exception  to  Charge. 

28.  Opinion  of  Court — How  Guarded. 
28a.  The  Court  not  Mere  Presiding  Officer. 
28b.  The  Court  not  a  mere  Presiding  Officer. 

29.  Court  Cannot  Comment  on  Lack  of  Evidence — Presumption  of 

Good  Character. 

30.  Further  Limitations  on  Court. 

31.  Verdict  as  to  Part  of  Counts. 
31a.  Return  of  Verdict. 

32.  Sentence  and  Correction  Thereof. 
32a.  Sentence — Correction — Practice. 
32b.  Single  Sentence,  What  is. 

33.  No  Authority  to  Suspend  Sentence. 
33a.  No  authority  to  Suspend. 

34.  Correction  of  Sentence;     Control  of  Court  over  Sentence  after 

Term;  New  Trial;  Motion  for,  When  to  be  Made;  May  be 
Made  in  Court  of  Appeals;  Null  and  Void  Criminal  Judgment; 
Whether  May  be  Corrected,  and  How. 


General  Provisions  Applicable  to  the  Practice.    25 

§  34a.  Sentence  not  Absolutely  Void;    Resentencing. 

35.  Remission  of  Penalty  on  Forfeited  Recognizance. 
35a.  Fine  Abated  by  Death. 

35b.  Fine — Recovery,  etc. 

36.  Bail  After  Affirmance. 

36a.  Bail — Amount — Manner  of  Trial. 

36b.  Bail  Matter  of  Discretion  and   Matter  of  Right,  When. 

36c.  Voluntary  Giving  of  Bond   no   Defense  to  Surety  Liability. 

37.  Severance — Separate  Trials — Discretion  of  Court. 

38.  Habeas   Corpus — Conclusion   of   Law   Therein  Instead   of   State- 

ment of  Facts. 
38a.  Habeas  Corpus. 
38b.  Habeas  Corpus  not  to  be  used  as  Writ  Error. 

39.  Immunity  under  Commerce  Act  by  Reason  of  Testimony. 

39a.  Immunity  Governs  Testimony  by  the  Commissioner  of  Corpora- 
tions; As  Applied  to  the  Fifth  Amendment;  As  Applied  to 
Section  860;    Duces  Tecum  Basis  of. 

40.  Improper  Person  in  Grand  Jury  Room. 
40a.  Improper  Presence  in  grand  jury  Room. 

40b.  Hearsay  Testimony  Before  Grand  Jury — Stenographer  Before 
Grand  Jury. 

41.  Private  Prosecutor  Unknown  in  Federal  Courts. 
41a.  Assignments  to  District  Attorneys. 

42.  Proof  of  Witness's  Former  Conviction. 
42x.  Proof   of   Witness,    Former   Connection. 
42y.  Evidence  of  Another  Crime. 

§  10.  Judicial  Code  and  the  Courts. — Article  3  of 
the  Constitution  of  the  United  States  provides  in  sub- 
stance that  the  judicial  power  of  the  United  States  shall 
be  vested  in  a  Supreme  Court  and  in  such  inferior  courts 
as  Congress  may  establish.  Passing  by  the  courts  of  the 
District  of  Columbia  and  the  territorial  courts  there  is 
but  one  federal  court  in  which  indictments  and  infor- 
mations may  be  lodged  and  tried,  namely,  the  district 
courts.  Circuit  courts  were  abolished  by  the  Act  of 
March  3,  1911,  which  Act  enlarged  the  jurisdiction  of 
the  district  courts,  re-enacted  the  provisions  relating  to 
the  Supreme  Court,  Circuit  Courts  of  Appeals,  and 
Court  of  Claims,  and  embraced  the  enactments  estab- 
lishing the  Commerce  Court  and  the  Court  of  Customs 
Appeals.  This  act  was  called  the  Judicial  Code,  and 
went  into  effect  January  1,  1912.  The  jurisdiction  con- 
ferred on  the  district  courts  up  to  January  1,  1912,  is 


26  Federal.  Criminal.  Law  Procedure. 

enumerated  in  Section  563  of  the  1878  statutes  and  the 
jurisdiction  conferred  on  the  district  courts  by  the  new 
Judicial  Code  is  shown  in  Section  24  of  that  Code. 

§  10a.  Trial  —  Public.  —  The  Constitution  does  not 
necessarily  mean  that  "public  trial"  means  the  presence 
of  spectators.  When  spectators  are  excluded  defendant 
should  allege  and  show  injury  to  set  aside  verdict. 
Reagan  vs.  U.  S.,  202  Fed.  488. 

§  10b.  Trial — Public — Continued. — In  the  case  of 
Davis  vs.  U.  S.,  247  Fed.  394,  the  Circuit  Court  of  Appeals 
for  the  8th  Circuit  reversed  the  conviction  because  the 
court  excluded  from  the  court-room  all  spectators  except 
the  relatives  of  the  defendant,  members  of  the  bar  and 
newspaper  reporters,  holding  that  such  action  deprived 
the  defendants  of  a  public  trial  which  is  guaranteed  by 
the  constitution,  and  that  prejudice  will  be  implied,  and 
that  an  affirmative  showing  that  the  defendants  were 
harmed  was  unnecessary  to  justify  a  reversal. 

This  case  in  its  holding  seems  to  be  in  direct  conflict 
with  the  case  of  Reagan  vs.  U.  S.,  cited  in  paragraph 
10-a,  in  that  circuit  Judge  Gilbert  speaking  for  the  Court 
of  Appeals  of  the  9th  Circuit  said,  "we  think  the  better 
doctrine  is  that  it  is  not  reversable  error  to  exclude  the 
spectators  as  was  done  by  the  order  of  the  court  in  the 
case  at  bar,  when  there  is  no  showing  whatever  that  the 
defendant  was  prejudiced  thereby,  or  deprived  of  the 
presence,  aid,  or  counsel  of  any  person  whose  presence 
might  have  been  of  advantage  to  him." 

I  am  of  the  opinion  that  a  violation  of  the  constitu- 
tional rights  necessarily  implies  prejudice  and,  as  said 
in  the  Davis  case,  "more  than  that  need  not  appear." 

§  10c.  Constitutional  Trial — Court. — In  some  districts 
the  courts  have  been  following  the  practice  of  permitting 
pleas  of  guilty  to  be  taken  in  felony  cases,  as  well  as  mis- 
demeanors, before  the  court,  without  a  jury.  It  is  not 
believed  that  this  practice  is  defensible.  While  there 
are  some  states  that  permit  this  practice,  a  reading  of 
the  cases  from  such  states  discloses  that  the  constitu- 
tional provision  relating  to  jury  trials  in  such  states  is 
radically  different  from  the  federal  provision.    While  it 


General  Provisions  Applicable  to  the  Practice.    27 

may  be  argued  that  it  would  be  difficult  for  a  defendant 
who  consented  to  such  procedure  to  afterward  undo  it, 
the  fact  remains  that  there  is  no  constitutional  way  to 
try  one  under  the  federal  constitution  for  a  felony  save 
by  a  jury  presided  over  by  a  judge. 

Often  it  would  be  quite  convenient,  and  apparently 
quite  harmless,  to  allow  the  record  to  be  silent  as  to  the 
number  of  jurors  sitting;  but  it  has  been  invariably 
held  by  the  federal  courts  that  there  are  some  things  that 
a  defendant  cannot  waive  —  some  things  that  a  prose- 
cuting attorney,  as  an  agent  of  the  people,  cannot  agree 
to,  and  that,  therefore,  there  is  only  one  sort  of  jury, 
viz.,  twelve  men. 

"When  we  review  the  history  of  the  trial  of  persons 
charged  with  crime  and  ascertain  the  growth,  harvest 
and  perfection  of  the  present  system  we  understand  the 
solicitude  of  the  people  for  the  preservation  of  such 
rights. 

Originally  the  trial  was  by  ordeal  —  hot  iron  or  water 
or  some  other  method;  later,  during  the  reign  of  Henry 
7th,  it  was  decided  that  the  guilt  or  innocence  of  a  crimi- 
nal charge  was  determined  by  a  public  court,  in  the 
county  where  the  offense  occurred,  before  a  jury  of  twelve 
men,  from  whose  unanimous  verdict  no  appeal  could  be 
had.  To  these  final  perfections  has  been  added  the  right  of 
appeal ;  in  other  words  the  verdict  of  the  petit  jury  is  not 
final  in  the  sense  that  it  may  not  be  appealed  from. 

A  federal  trial  must  be  conducted  before  a  jury  of 
twelve  men  and  presided  over  by  a  judge  and  such  judge 
cannot  be  substituted  during  the  trial. 

In  the  case  of  Freeman  vs.  U.  S.,  227  Fed.  734,  Circuit 
Judge  Rogers,  speaking  for  the  Court  of  Appeals  of  the 
second  circuit  writes  learnedly  and  interestingly  of  the 
evolution  of  our  system  and  of  its  constitutional  rigors 
and  demands. 

§  11.  United  States  Commissioners. — The  present 
United  States  Commissioners,  that  correspond  in  a  gen- 
eral way  to  magistrates,  justices  of  the  peace,  and  other 
state  examining  officers,  were,  under  the  old  law,  called 
Commissioners  of  the  Circuit  Courts;   but  by  the  Act  of 


28  Federal  Criminal.  Law  Procedure. 

May,  1896,  all  Circuit  Court  Commissioners  were  abolish- 
ed, and  thereafter  it  became  the  duty  of  the  District  Court 
of  each  judicial  district  in  the  United  States  to  appoint 
such  number  of  persons  as  it  might  deem  necessary  to  be 
known  as  United  States  Commissioners.  This  Act  of 
May,  1896,  was  an  amendment  to  the  old  Section  627  of 
the  Eevised  Statutes.  The  Criminal  Code  of  1910  does 
not  change  the  Act  of  1896. 

A  United  States  Commissioner,  however,  is  not  a  Court. 
In  the  case  of  in  re  Sing  Tuck,  126  Federal,  397,  the  Court 
held  a  United  States  Commissioner  to  be  neither  a  court 
nor  a  judge,  nor  vested  by  law  with  any  part  of  the 
judicial  power  of  the  United  States.  A  United  States 
Commissioner  is  an  inferior  officer  of  a  court,  appointed 
by  the  court  under  authority  of  Congress,  with  denned 
and  circumscribed  powers.  United  States  vs.  Case,  8 
Blatchf.,  250;  United  States  vs.  Schumaan,  2  Abb.  U.  S. 
523;  in  re  Kaine,  14  Howard,  103;  United  States  vs. 
Clark,  1  Gall.,  497.  See  also  in  re  Grin,  112  Federal,  795; 
Rice  vs.  Ames,  180  U.  S.,  371;  Wright  vs.  Henkel,  190  U 
S.,  62;  Beavers  vs.  Henkel,  194  U.  S.  87,  as  to  other 
powers  of  United  States  Commissioners,  under  proper 
appointment  from  the  Court. 

In  100  Federal,  page  950,  in  re  Perkins,  it  was  held  that 
a  United  States  Commissioner  cannot  punish  for  con- 
tempt, and  the  doctrine  is  reiterated  that  a  United  States 
Commissioner  does  not,  and  cannot,  hold  a  United  States 
Court,  but  is  a  part  of  the  Court  appointing  him;  and 
when  there  be  disobedience  to  his  process  or  authority, 
the  Commissioner  properly  refers  such  disobedience 
to  the  Court  by  whose  authority  he  exists,  which  Court 
pursues  the  proper  methods  for  contempt  proceedings. 
In  United  States  vs.  Wah,  160  Federal,  207,  the  above 
doctrine  has  been  reiterated,  and  it  is  clearly  stated  and 
argued,  citing  authorities,  that  United  States  Commis- 
sioners are  neither  judges  nor  courts,  nor  do  they  hold 
courts,  though  at  some  times  acting  in  a  quasi-judicial 
capacity,  nor  do  they  possess  the  power  of  courts,  except 
in  so  far  as  the  Acts  of  Congress  conferring  certain  au- 


General  Provisions  Applicable  to  the  Practice.    29 

thority  and  imposing  certain  duties  on  them,  especially 
confer  the  same. 

§  11a.  Contempts. — In  speaking  of  the  authorities 
that  hold  that  a  United  States  Commissioner  is  not  a 
court,  I  cited  some  precedents  that  have  blazed  a  method 
for  punishing  contempts  before  United  States  Commis- 
sioners which  suggests  the  subject  as  related  to  the 
courts.  There  is  never  any  difference  of  opinion  as  to  the 
power  and  right  of  a  court  to  punish  for  contempts  comit- 
ted  in  its  presence.  This  power  is  inherent  and  is  a  corol- 
lary of  authority  itself.  Just  what  outside  acts  amount  to 
a  contempt  and  just  how  far  the  courts  will  go  in  enforc- 
ing obedience  is  an  interesting  field  and  not  quite  so  well 
measured.  For  instance  in  Grant  v.  U.  S.,  227  U.  S.  704, 
it  was  held  that  a  judgment  for  criminal  contempt  can 
be  reviewed  only  by  writ  of  error  and  not  by  appeal  and 
that  the  personal  privilege  does  not  relieve  an  attorney 
from  producing,  under  subpoena  of  the  federal  grand 
jury,  books  and  paper  of  a  corporation  left  with  him  for 
safe-keeping  by  a  client  who  claimed  to  be  owner  thereof, 
and  such  production  may  be  enforced  even  though  the 
books  and  documents  would  incriminate  the  attorney  who 
claimed  to  be  holding  them  for  his  client.  See  also 
Wheeler  v.  U.  S.  226,  U.  S.  478.  To  the  same  effect  is  the 
case  of  Norcross  v.  U.  S.,  209  Fed.  13,  which  held  that  a 
contempt  punishment  would  lie  for  the  failure  of  the 
secretary  of  a  corporation  to  produce  before  a  grand  jury 
the  books  and  records  called  for  in  a  subpoena  duces 
tecum  and  this  though  there  was  no  pending  charge  be- 
fore the  grand  jury  against  the  corporation  or  any  of  its 
officers  or  stockholders.  This  case  was  a  writ  of  error 
from  a  judgment  by  the  lower  court  committing  the  of- 
fending witness  to  imprisonment  until  he  should  conform 
to  the  requirements  of  the  subpoena  and  the  above  opin- 
ion was  by  the  Circuit  Court  of  Appeals  for  the  Ninth 
Circuit. 

In  the  case  of  U.  S.  v.  Huff,  206  Fed.  700,  District 
Judge  Grubb  outlines  the  procedure  and  says  that  a  con- 
tempt proceeding,  although  instituted  in  civil  form  by  an 
order  made  in  a  pending  suit  directing  the  issuance  of  an 


30  Federal  Criminal-  Law  Procedure. 

attachment  to  bring  the  defendant  into  court,  may  be 
converted  into  a  criminal  proceeding  by  the  intervention 
of  the  United  States  and  the  filing  of  a  motion  asking  to 
be  made  plaintiff  therein.  He  also  says  that  the  common 
law  rule  that  one  charged  with  contempt  may  purge  him- 
self and  be  entitled  to  a  discharge  by  the  filing  of  a  sworn 
answer  denying  the  contempt,  is  not  recognized  by  the 
federal  courts  because  they  leave  the  question  to  be  de- 
termined by  the  proofs  on  the  hearing. 

In  the  provision  of  Revised  Statute  §  725  and  Judicial 
Code  §  628  limiting  the  power  of  federal  courts  to  punish 
for  contempt  to  misbehavior  in  the  presence  of  the  court 
or  so  near  thereto  as  to  obstruct  the  administration  of 
justice,  the  second  clause  is  not  restricted  in  meaning  to 
acts  committed  so  near  any  point  of  distance  to  the  place 
of  holding  court  as  to  be  obstructive  to  orderly  procedure, 
which  are  covered  by  the  preceding  clause  as  construed 
by  the  Supreme  Court,  but  applies  to  all  acts  of  misbe- 
havior the  natural  tendency  and  effect  of  which  are  to 
interfere  with  the  administration  of  justice,  wherever  the 
acts  may  be  committed.  Where  a  defendant  wrote  and 
sent  letters  to  a  federal  judge  which  were  delivered  to 
him  in  a  room  of  his  residence  where  he  frequently  heard 
matters  in  chambers,  although  it  was  not  being  so  used 
at  the  time,  such  letters  relating  to  a  pending  suit,  to 
which  the  defendant  was  a  part  and  in  which  the  judge 
was  still  required  to  take  action,  they  constituted  a  con- 
tempt punishable  by  the  court  under  Judicial  Code  §  268. 

In  Kirk  v.  IT.  S.,  192  Fed.  273,  Circuit  Judge  Gilbert, 
speaking  for  the  Circuit  Court  of  Appeals  for  the  Ninth 
Circuit,  affirmed  a  contempt  conviction  which  grew  out 
of  an  attempt  to  corrupt  jurors  whom  the  defendant  ex- 
pected would  sit  in  a  criminal  trial  about  to  be  held  in 
the  same  city,  though  such  acts  occurred  in  a  saloon 
several  blocks  from  the  place  where  the  court  was  held. 
The  court  specifically  said  that  it  was  sufficiently  near  to 
the  court  to  obstruct  the  administration  of  justice  and 
it  was  therefore  within  the  court's  jurisdiction  to  punish, 
even  though  it  did  not  occur  on  property  belonging  to  the 
United  States  or  occupied  or  used  by  it. 


General  Provisions  Applicable  to  the  Practice.    31 

In  U.  S.  v.  Barrett  et  al.,  187  Fed.  378,  the  defendants 
were  punished  for  having  made  an  unprovoked  assault 
on  one  of  the  attorneys  interested  in  a  caes  being  tried 
in  the  district  court,  such  assault  having  been  made  be- 
cause of  the  argument  of  such  attorney  and  having  been 
made  on  the  street  in  full  view  of  the  jury  room.  The 
court  said  it  had  the  power  under  its  general  jurisdiction 
to  see  that  counsel  practicing  before  it  were  not  interfered 
with  and  that  it  had  jurisdiction  to  punish  individuals 
for  contempt  who  assaulted  counsel. 

Judge  Lacombe,  in  the  Steiner  case,  195  Fed.  300,  held 
that  the  preparation,  verifying  and  presentment  of  a  false 
affidavit  intended  to  influence  the  action  of  a  court,  con- 
stituted an  obstruction  to  the  administration  of  justice 
punishable  as  a  criminal  contempt  and  that  contempt  pro- 
ceedings could  be  begun  by  warrant  of  attachment,  as 
well  as  by  a  rule  to  show  cause. 

Section  268  of  the  Judicial  Code  reads  as  follows: 

"The  court  shall  have  power  to  impose  and  administer  all  necessary 
oaths  and  to  punish  by  fine  or  imprisonment,  at  the  discretion  of  the 
court,  contempts  of  their  authority;  provided,  that  such  power  to  pun- 
ish contempts  shall  not  be  construed  to  extend  to  any  cases  except  the 
misbehavior  of  any  person  in  their  presence,  or  so  near  thereto  as  to 
obstruct  the  administration  of  justice,  the  misbehavior  of  any  of  the 
officers  of  said  courts  in  their  official  transactions,  and  the  disobedience 
or  resistance  by  any  such  officer,  or  by  any  party,  juror,  witness  or 
other  person  to  any  lawful  writ,  process,  order,  rule,  decree  or  command 
of  the  said  courts." 

In  Gompers  v.  U.  S.  233,  U.  S.  604,  the  Supreme  Court 
held  that  while  it  could  not  review  by  appeal  or  writ  of 
error  a  judgment  of  the  Court  of  Appeals  of  the  District 
of  Columbia,  punishing  for  contempt,  it  may  grant  a  writ 
of  certiorari  to  review  the  same.  In  this  case  the  court 
asked  the  interesting  question  as  to  whether  an  indict- 
ment will  lie  for  a  contempt  of  the  court  of  the  United 
States  and  left  it  unanswered.  The  Gompers  case  will  be 
recalled  as  the  case  originating  from  the  Buck  stove  boy- 
cott and  grew  immediately  out  of  the  publication  of  an 
issue  of  a  labor  paper. 

Section  1044  of  the  Eevised  Statutes  provides  that  no 
person  shall  be  prosecuted  for  an  offense,  not  capital, 


32  Federal  Criminal  Law  Procedure. 

unless  the  indictment  is  found  or  information  instituted 
within  three  years  after  the  commission  of  the  offense 
and  the  Supreme  Court  held  in  the  Gompers  case  that 
this  provision  of  limitation  applied  to  acts  of  contempt 
that  were  not  committed  in  the  presence  of  the  court, 
233  U.  S.  605.  In  that  same  case  the  court  exhaustively 
considered  the  proposition  as  to  whether  or  not  a  sum- 
mary punishment  for  contempt  was  in  violation  of  any 
of  the  Constitutional  provisions  guaranteeing  jury  trial 
and  presentment  by  indictment  and  determined  that  the 
power  to  punish  summarily  was  a  part  of  the  court  itself 
and  could  not  depend  upon  the  uncertainty  or  delay  of 
jury  trials.  This  construction  has  long  been  recognized 
by  the  law  writers  as  correct,  the  carrying  into  effect 
of  which  is  not  a  deprivation  of  "due  process  of  law." 
Bishop's  New  Criminal  Procedure,  Vol.  1,  §  100a,  Par.  3; 
same  work,  Vol.  2,  §  892,  Par.  6.  IT.  S.  v.  Sweeney,  95 
Fed.  434;  People  v.  Kipley,  171  111.  44;  41  L.  R.  A.  775. 

Violating  injunctions,  process  of  punishment  for, 
whether  civil  or  criminal  contempt,  Scovic  v.  U.  S.  217, 
Fed.  871;   Schwortz  v.  U.  S.  217,  Fed.  866. 

§  lib.  Contempt  Defined.— The  act  of  October  15, 
1914,  on  trade  unions  and  combinations  and  trusts,  found 
at  page  128  of  the  Federal  Statutes  Annotated  Supple- 
ment, of  the  63rd  Congress,  in  §  21  provides: 

"That  any  person  who  shall  wilfully  disohey  any  lawful  writ,  process, 
order,  rule,  decree,  or  command  of  any  district  court  of  the  United 
States  or  any  court  of  the  District  of  Columbia,  by  doing  any  act 
or  thing  therein,  or  thereby  forbidden  to  be  done  by  him,  if  the  act 
or  thing  so  done  by  him  be  of  such  character  as  to  constitute  also 
a  criminal  offense  under  any  statute  of  the  United  States,  or  under 
the  laws  of  any  state  in  which  the  act  was  committed  shall  be  pro- 
ceeded against  for  his  said  contempt  as  hereinafter  provided." 

Section  22  provides  the  procedure  for  such  trials  and 
punishment,  which  includes  the  right  of  trial  by  jury, 
and  limits  the  punishment  to  a  fine  not  exceeding  one 
thousand  dollars  or  a  term  not  exceeding  six  months  or 
both,  and  §  23  provides  for  an  appeal  from  a  conviction 
and  bail  during  such  appeal.     §  24  reads  as  follows: 


General  Provisions  Applicable  to  the  Practice.    33 

"That  nothing  herein  contained  shall  be  construed  to  delate  to 
contempts  committed  in  the  presence  of  the  court,  or  so  near  thereto 
as  to  obstruct  the  administration  of  justice,  nor  to  contempts  commited 
in  disobdience  of  any  lawful  writ,  process,  order,  rule,  decree,  or  com- 
mand entered  in  any  suit  or  action  brought  or  prosecuted  in  the  name 
of  or  on  behalf  of  the  United  States,  but  the  same  and  all  other  cases 
of  contempt,  not  specifically  embraced  within  section  21  of  this  Act, 
may  be  punished  in  conformity  to  the  usages  at  law  and  in  equity 
now  prevailing." 

Other  than  the  contempts  defined  in  Section  21  of  this 
new  law,  it  would  seem  that  the  statute  relates  to  no 
other  sort  and  that  the  procedure  and  punishment  are  as 
hereinbefore  defined  for  all  other  contempts. 

§  lie.  Contempt  Pendente  Lite. — A  persisting  in  per- 
jury or  a  continued  failure  to  comiDly  with  an  order  of 
the  court,  are  contempts  that  may  be  prosecuted  by  a  mo- 
tion filed  by  the  prosecuting  officer  or  upon  the  court's 
own  motion.  In  United  States  v.  Appel,  211  Fed.  495,  the 
court  held  that  it  had  power  to  punish  as  a  criminal  con- 
tempt persistent  perjury  which  blocks  the  inquiry  before 
it,  upon  motion  made  by  the  district  attorney  on  behalf  of 
the  United  States.  A  court,  like  anyone  else  who  is  in 
earnest,  ought  not  to  be  put  out  by  transparent  sham  or 
evasive  answer.  Answers  that  are  manifestly  untrue  are 
as«  surely  a  contempt  of  the  court  as  is  the  refusal  to 
answer  at  all.  It  is  no  defense  to  proceedings  for  con- 
tempt in  making  and  presenting  false  affidavits  and  in 
disobeying  an  order  requiring  delivery  of  property,  that 
the  respondent  ultimately  succeeded  in  the  suit  in  which 
the  contempt  was  committed.  In  re  Steiner,  195"  Fed. 
300.  A  proceeding  for  contempt  of  court  may  be  begun 
by  warrant  of  attachment  as  well  as  by  rule  to  show 
cause,  and  the  fact  that  perjury  is  a  substantive  crime, 
punishable  as  such,  does  not  prevent  it  from  also  con- 
stituting a  contempt  punishable  under  Revised  Statutes 
725,  which  is  now  Section  268  of  the  Judicial  Code.  See, 
also,  for  bankruptcy  contempts,  U.  S.  v.  Henkel,  185  Fed. 
553. 

§  lid.  Illustrative  Contempts.— In  Toledo  Newspaper 
Company  vs.  U.  S.,  38  Sup.  Ct.  Rep.,  page  560,  247  U.  S. 


34  Federal.  Criminal,  Law  Procedure. 

402,  it  was  determined  that  Sec.  268  of  the  Judicial  Code, 
which  declares  that  courts  shall  have  the  power  to  pun- 
ish contempts  of  their  authority,  provided  that  such  pow- 
er shall  not  be  construed  to  extend  to  any  cases,  ex- 
cept the  misbehavior  of  any  person  in  their  presence, 
or  so  near  thereto  as  to  obstruct  the  administration  of 
justice,  confers  no  power  not  already  granted,  and  im- 
poses no  limitations  not  already  existing,  but  merely 
marks  the  boundaries  of  existing  authorities,  and  under 
it  the  publisher  of  a  newspaper  which  criticized  the  pre- 
siding judge  and  held  him  up  to  ridicule  and  hatred  in 
case  he  should  grant  an  injunction,  and  in  advance  im- 
peached his  motives,  was  guilty  of  contempt,  even  though 
it  did  not  appear  that  the  judge  saw  the  articles  or  that 
he  was  affected  by  them. 

See  also  In  re  U.  S.  vs.  Providence,  241  Fed.  524. 

In  the  case  of  Marshall  vs.  Gordon,  243  IT.  S.  521,  the 
supreme  court  held  that  the  congress  did  not  have  the 
power  to  punish  by  contempt  proceedings  an  United 
State  Attorney  who  had  criticized  a  committee  of  the 
House  of  Representatives. 

A  letter  of  an  administrative  officer  containing  a  false 
charge  against  a  judge  concerning  cases  pending  before 
such  court  was  a  contempt  of  that  court.  IT.  S.  vs.  Craig. 
266  Fed.  230.  • 

Attorneys  having  communications  and  meeting  with 
jurors  may  be  prosecuted  for  contempt  by  information 
presented  by  the  IT.  S.  Attorney  and  the  facts  alleged 
upon  information  and  belief.  Kellev  vs.  U.  S.,  250  Fed. 
947. 

Hiring  out  of  a  prisoner  or  allowing  him  to  escape  is 
a  contempt.    O'Rourke,  251  Fed.,  768. 

Disobedience  on  an  order  is  a  civil  contempt  and  re- 
viewable only  by  appeal.  Cutting  vs.  Van  Fleet,  252  Fed. 
100. 

Failure  to  answer  questions  is  a  contempt  and  is  re- 
viewable on  writ  of  error  taken  within  six  months;  but 
an  order  denying  the  motion  to  vacate  such  order  is  in- 
terlocutors, and  not  subject  to  review  by  writ  of  error. 
Gill  vs.  IT."  S.,  262  Fed.  502. 


General  Provisions  Applicable  to  the  Practice.    35 

The  sheriff  of  a  state  who  allows  an  United  States 
prisoner  to  escape  is  guilty.  Swepston  vs.  U.  S.,  251  Fed. 
205. 

Language  or  conduct  designed  and  having  the  natural 
effect  to  incite  others  to  violence  in  disregard  of  an  in- 
junction, is  in  itself  a  contempt  of  the  court.  Stewart 
vs.  U.  S.,  236  Fed.  838. 

In  the  Toledo  Newspaper  Company  vs.  U.  S.,  237  Fed. 
986,  while  it  was  before  the  Circuit  Court  of  Appeals,  it 
was  suggested  that  where  a  contempt  was  charged  by 
certain  newspaper  publishers  concerning  a  judge  sitting 
in  a  pending  trial,  that  such  judge  has  jurisdiction  to 
dispose  of  the  contempt  proceedings,  but,  if  there  bft 
sufficient  time,  he  should  call  in  another  judge. 

A  criminal  contempt  is  an  "offense,"  within  the  mean- 
ing of  Art.  5541  R.  S.,  and  where  the  sentence  imposed, 
exceeds  a  year  imprisonment,  may  be  in  a  penitentiary. 
Creekmore  vs.  U.  S.,  237  Fed.  743. 

A  speech  by  an  attorney  at  a  public  meeting  attacking 
the  court  is  a  contempt.  U.  S.  vs.  Markewich,  261  Fed. 
537. 

An  attorney  drinking,  etc.,  with  a  juror  is  in  con- 
tempt.   In  re  Kelly,  243  Fed.  696. 

A  civil  contempt  should  not  be  turned  into  a  criminal 
contempt  for  the  convenience  of  the  defendant,  as  to 
speeding  a  hearing  on  an  injunction  as  to  patents.  Tur- 
ner vs.  U.  S.,  238  Fed.  194. 

In  a  criminal  action  for  contempt,  for  violating  an 
injunction,  the  only  errors  for  which  the  judgment  may 
be  reversed  are  those  errors  of  law  committed  by  the 
court  below  in  the  contempt  action.  Jennings  vs.  IT.  S., 
264  Fed.  399. 

The  Supreme  Court  of  the  United  States  will  grant 
permission  to  file  an  habeas  corpus  to  one  illegally  com- 
mitted for  contempt  in  the  United  States  District  Court, 
say  for  perjury,  when  the  case  is  of  exceptional  charac- 
ter. Ex  parte  Hudgings,  39  Sup.  Ct.  Rep.,  337;  249  U. 
S.  378. 

Contempts. — House  of  Representatives. 

See  U.  S.  vs.  Gordon,  235  Fed.  423. 


36  Federal  Criminal  Law  Procedure. 

§  12.  Prosecution  Begun  by  Indictment. — While  there 
remain  some  few  statutes  that  impose  punishments  suffi- 
ciently light  to  permit  prosecution  to  be  begun  by  in- 
formation, most  prosecutions  must  be  begun  by  indict- 
ment.   See  also  §  5a. 

§  12a.  For  illustrative  cases  under  which  prosecutions 
have  been  begun  by  information  see  paragraph  5-b. 

§  13.  Grand  Jury  and  Indictment. — Constitutional 
amendment  5  guarantees  that  no  person  shall  be  held  to 
answer  unless  upon  presentment  or  by  indictment.  We 
have  learned  in  §  5a  that  all  offenses  which  may  be  pun- 
ishable by  a  term  in  excess  of  one  year,  must  be  begun 
by  indictment.  A  grand  jury,  under  Section  808  of  the 
Revised  Statutes,  must  consist  of  not  less  than  sixteen 
nor  more  than  twenty-three  men,  twelve  of  whom  must 
vote  in  favor  of  a  bill  before  it  can  be  legallv  returned. 
Section  1021  E.  S.  Section  282  of  the  new  Judicial  Code 
provides  that  every  grand  jury  shall  consist  of  not  less 
than  sixteen  nor  more  than  twenty-three  persons  and  that 
if  of  the  persons  summoned,  less  than  sixteen  attend,  they 
shall  be  placed  on  the  grand  jury  and  the  court  shall  order 
the  marshal  to  summon  either  immediatelv  or  for  a  dav 
fixed  from  the  body  of  the  district,  and  not  from  the  by- 
standers, a  sufficient  number  of  persons  to  complete  the 
grand  jury.    Judicial  Code  Section  282. 

Section  276  of  the  Judicial  Code  specifies  the  method 
for  drawing  jurors  and  provides  for  a  commission  to  per- 
form this  service.  It  is  not  legal  to  summon  thirty  men 
to  serve  on  a  grand  jury  and  then  to  cull  therefrom  twen- 
ty-three for  actual  service.  IT.  S.  v.  Lewis,  192  Fed.  633. 
But  see  U.  S.  v.  Breeding,  207  Fed.  645,  where  the  court 
held  that  the  summoning  of  thirty  veniremen  for  grand 
jury  service  and  thereafter  when  more  than  twenty-three 
answered  a  standing  rule  of  the  court  provided  that  an  al- 
phabetical list  of  those  present  should  be  made  and  of 
such  list  the  first  twenty-three  should  compose  the  grand 
jury,  it  was  legally  constituted  under  the  present  statutes. 

Judge  McDowell,  in  reasoning  his  conclusions  to  sup- 
port the  last  decision,  said  "The  first  objection  to  sum- 
moning more  than  twenty-three  veniremen  is,  of  course, 


General  Provisions  Applicable  to  the  Practice.    37 

the  seeming  difficulty  in  fairly  selecting  those  who  are 
to  serve.  The  rule  of  court  above-mentioned  certainly 
wholly  obviates  this  objection.  This  rule  being  followed, 
it  is  a  matter  of  pure  chance.  There  is  no  room  for  even 
any  suspicion  of  unfairness  in  selecting  the  grand  jury 
of  twenty-three  from  the  qualified  veniremen  present. 
The  only  remaining  objection  that  occurs  to  me  must  be 
found  in  a  supposed  implication  from  the  statutory  re- 
quirement, Section  808  R.  S. ;  Section  282  Judicial  Code, 
that  grand  juries  shall  not  exceed  twenty-three  members. 
There  is  certainly  in  the  statute  no  express  inhibition 
against  summoning  more  than  twenty-three  veniremen, 
and  there  are  some  very  strong  reasons  against  finding  in 
the  statute  any  implied  inhibition."  As  for  instance  the 
loss  of  time  in  waiting  for  the  marshal  to  summon  tales- 
men from  the  body  of  the  district. 

It  is  not  error  for  the  court  to  instruct  the  marshal  to 
summon  additional  names  as  provided  by  the  statute  even 
though  as  many  as  sixteen  have  responded  to  the  original 
summons.  In  other  words,  the  court,  finding  but  sixteen 
men  on  a  responding  grand  jury  venire  may  direct  the 
marshal  to  summon  from  the  body  of  the  district  five 
or  more  names  to  bring  the  number  up  to  twenty-three,  if 
he  sees  fit.    U.  S.  vs.  Nevin,  199  Fed.  831. 

So  also  a  venire  of  jurors  may  be  drawn  and  examined 
for  a  term,  in  accordance  with  the  statute,  without  des- 
ignating them  as  grand  or  petit  jurors,  and  at  the  term 
a  grand  jury  may  be  selected  therefrom,  where  such  is  the 
state  practice.  U.  S.  vs.  Breese,  72  Fed.  765,  affirmed  IT. 
S.,  Supreme  Court,  226  U.  S.  1. 

Under  the  authority  of  Section  802  E.  S.  the  court  may 
provide  that  jurors  shall  be  returned  from  such  parts  of 
the  district,  from  time  to  time,  as  the  court  shall  direct,  so 
as  to  be  most  favorable  to  an  impartial  trial  and  so  as 
not  to  incur  unnecessary  expense  or  to  unduly  burden  the 
citizens  of  any  part  of  the  district  with  such  service.  May 
vs.  U.  S.  99  Fed.  54. 

Under  a  statute  declaring  that  the  names  first  drawn 
from  a  jury  box  shall  constitute  the  grand  jury,  and  the 
later  the  petit  jury,  a  grand  jury  from  which  jurors  whose 


38  Federal.  Criminal  Law  Procedure. 

names  were  first  called  were  improperly  excused,  and 
their  places  filled  by  persons  whose  names  were  there- 
after drawn  from  the  box,  was  illegal. 

The  bill  must  be  returned  into  open  court  and  it  must 
be  returned  by  the  foreman  who  shall  be  accompanied  by 
the  rest  of  the  grand  jurors.  I  am  fully  aware  that  the 
case  of  U.  S.  vs.  Breese,  reported  in  172  Fed.  765,  held 
that  where  the  record  in  a  criminal  case  showed  that  the 
indictment  was  properly  endorsed  "a  true  bill"  by  the 
foreman  of  the  grand  jury  and  where  it  was  conceded  that 
the  indictment  was  found  by  a  vote  of  the  requisite  num- 
ber of  grand  jurors  and  after  being  properly  endorsed 
by  the  foreman,  was  taken  by  him  into  the  court  room 
which  opened  from  the  grand  jury  room  and  presented 
to  the  judge  on  the  bench  when  the  court  was  in  session 
and  by  him  handed  to  the  clerk,  such  indictment  was 
held  to  be  valid.  If  this  decision  is  based  upon  the  fact 
that  the  balance  of  the  grand  jurors  could  be  seen  from 
where  the  presiding  judge  sat  or  upon  the  fact  that  the 
balance  of  the  grand  jurors  had  the  foreman  in  sight  all 
the  time,  then  the  same  reasoning  would  permit  the 
foreman  to  walk  unaccompanied  by  the  remainder  of 
the  grand  jurors  a  mile  or  across  a  Texas  prairie  so  long- 
as  he  was  in  sight  of  either  the  judge  or  the  rest  of  the 
grand  jurors.  When  the  case  got  to  the  Supreme  Court, 
as  shown  in  Vol.  226,  p.  1,  that  body  affirmatively  an- 
swered the  questions  of  the  Circuit  Court  of  Appeals 
which  was  passing  upon  the  writ  of  error  as  to  affirming 
the  judgment  of  conviction,  but  the  opinion  specially 
states  that  the  mode  of  presentment  followed  was  the 
mode  prescribed  by  the  laws  of  North  Carolina,  and  al- 
so states  that  the  objections  made  to  this  manner  of 
presentment  came  too  late  and  if  there  was  any  objection 
to  such  presentment,  it  was  cured  by  Section  1025  of  the 
Revised  Statutes  which  will  not  permit  an  indictment 
to  be  held  defective  because  of  matters  of  form  only, 
and  the  court  said  that  "We  do  not  think  it  necessary 
to  discuss  the  condition  that  the  fifth  amendment  to  the 
Constitution  requires  the  indictment  to  be  presented  by 


General  Provisions  Applicable  to  the  Practice.    39 

the  grand  jury  in  a  body  or  that  their  failure  so  to  do 
goes  to  the  jurisdiction  of  the  court." 

When  a  grand  jury  has  found  its  indictments  it  re- 
turns them  into  open  court,  going  personally  and  in  a 
body,  a  duty  which  is  more  or  less  regulated  by  statutes 
in  various  states.  Vol.  2,  Bishop's  New  Criminal  Pro- 
cedure, Second  Edition,  Section  869a,  Par.  3.  Renigar 
vs.  U.  S.  97  C.  C.  A.  172, 172  Fed.  646.  See  also  Section  17 
post. 

Judge  Trieber  in  U.  S.  vs.  Lewis,  192  Fed.  834,  held 
that  the  selection  of  a  grand  jury  is  a  matter  of  sub- 
stance which  cannot  be  disregarded  without  prejudice 
to  the  accused  and  is  not  a  mere  defect  of  form  such  as 
Section  1025  R.  S.  requires  to  be  disregarded  and  there- 
fore an  indictment  was  vitiated  by  an  order  for  the 
drawing  of  thirty-six  names  for  the  formation  of  a 
grand  jury,  which  permitted  the  marshal  to  summon 
twenty-three  persons  to-be  selected  by  him  from  the  thir- 
ty-six drawn.  Grand  jury  must  be  drawn  by  only  those 
authorized  by  sec.  276,  Judicial  Code.  U.  S.  vs.  Murphy 
224  Fed.  554. 

§  13a.  Grand  Jury,  Continued. — While  Federal  prose- 
cuting officers  are  not  bounden  by  any  rule  or  statute  to 
permit  a  defendant  or  his  witnesses  to  present  their  side 
of  a  question  which  is  being  investigated,  yet  the  care- 
ful prosecutor,  careful  of  the  reputation  of  the  citizen, 
often  avails  himself  of  the  opportunity  to  permit  the 
defendant  to  have  his  day  before  the  grand  jury.  A 
citizen  would  seem  to  have  the  right  to  enjoy  immunity 
from  indictment,  if  not  guilty,  as  fully  as  he  has  the 
right  to  enjoy  immunity  from  punishment,  if  not  guilty. 
Under  the  common  law,  however,  which,  in  the  absence 
of  statute,  controls  the  procedure  in  the  United  States 
courts,  a  grand  jury  hearing  was  an  ex  parte  proceeding, 
at  which  the  sovereignty  alone  was  heard. 

In  Book  4,  at  page  302,  of  Blackstone's  Commentaries, 
it  was  said  that  the  grand  jury  are  previously  instructed 
in  the  articles  of  their  inquiry  by  a  charge  from  the 
judge  who  presides  upon  the  bench.  Then  they  withdraw 
to  sit  and  receive  indictments,  which  are  preferred  to 


40  Fedeeal  Criminal  Law  Procedure. 

them  in  the  name  of  the  King,  but  at  the  suit  of  any  pri- 
vate prosecutor;  and  they  are  only  to  hear  evidence  on 
behalf  of  the  prosecution;  for  the  finding  of  au  indict- 
ment is  only  in  the  nature  of  an  inquiry  or  accusation 
which  is  afterwards  to  be  tried  and  determined;  and 
the  grand  jury  are  only  to  inquire  upon  their  oaths 
whether  there  be  sufficient  cause  to  call  upon  a  party  to 
answer  it.  A  grand  jury,  however,  ought  to  be  thorough- 
ly persuaded  of  the  truth  of  an  indictment  so  far  as 
their  evidence  goes;  and  not  to  rest  satisfied  merely  with 
remote  probabilities;  a  doctrine  that  might  be  applied 
to  very  oppressive  purposes. 

Mr.  Justice  Fields,  speaking  for  the  Supreme  Court 
of  the  United  States  in  2  Sawyer,  668,  observed  in  sub- 
stance that  the  grand  jury,  while  originally  for  the  con- 
venience of  the  Crown,  under  our  institutions  should  be 
the  protector  of  the  citizen. 

One  has  not,  however,  as  a  matter  of  law,  the  right  to 
appear  and  testify  before  a  grand  jury  which  is  investi- 
gating a  case  against  him.  U.  S.  vs.  Bolles,  209  Fed. 
682. 

§  13b.  Copy  of  the  Indictment. — A  copy  of  the  indict- 
ment is  not  furnished  as  a  matter  of  course  to  defendants. 
When  a  prosecution  is  for  treason,  however,  or  other  cap- 
ital offense,  then  a  copy  of  the  indictment  and  a  list  of  the 
jurors  and  witnesses,  must  be  delivered  to  the  defendant, 
in  the  first  instance  at  least  three  days  before  trial,  and  in 
the  last  instance  at  least  two  days  before  trial,  in  accord- 
ance with  Section  1033.  In  other  cases,  however,  copy  of 
the  indictment  is  unnecessary.  Balliet  vs.  U.  S.  129  Fed. 
689;  Jones  vs.  U.  S.  162  Fed.  417;  Ball  vs.  IT.  S.  147  Fed. 
32;  U.  S.  vs.  Van  Duzee,  140  U.  S.  173.  In  a  capital  case 
this  provision  applies  only  to  the  list  of  the  regular  panel 
of  jurors  and  not  to  talesmen.  Stewart  vs.  U.  S.  211  Fed. 
41. 

§  13c.  Evidence  Before  Grand  Jury. — Indictment 
should  be  based  on  legal  evidence.  To  warrant  the  return 
of  an  indictment  it  should  be  based  on  competent  legal 
evidence  such  as  is  legitimate  and  proper  before  a  petit 
jury.    20  Cyc.  1346;  U.  S.  vs.  Kilpatrick,  16  Fed.  765,  U. 


General  Provisions  Applicable  to  the  Practice.    41 

S.  vs.  Reed,  Fed.  Cas.  No.  16134.  Thus  the  report  of  an 
assistant  attorney  general  would  not  be  competent  legal 
evidence  in  a  trial  upon  an  indictment  charging  use  of 
the  mails  in  execution  of  a  scheme  to  defraud,  nor,  upon 
a  charge  of  the  use  of  the  mails  in  carrying  out  a  lottery 
scheme.  It  would  not,  therefore,  be  proper  to  submit  it 
to  the  grand  jury.  Harrison  vs.  U.  S.  C.  C.  A.  200  Fed. 
673. 

The  court  in  a  criminal  case,  however,  will  not  inquire 
into  the  evidence  before  the  grand  jury  to  ascertain 
whether  it  was  all  competent  or  sufficient  to  warrant  the 
indictment,  when  such  a  plea  is  verified  on  information 
and  belief  only.    U.  S.  vs.  Nevin,  199  Fed.  831. 

In  the  case  of  McKinney  vs.  U.  S.  199  Fed.  25,  the 
court  held  that  a  trial  court  cannot  be  required  to  review 
the  evidence  before  a  grand  jury  to  determine  its  suffi- 
ciency or  whether  incompetent  evidence  was  received,  un- 
less the  case  was  an  extreme  one  and  unless  it  was  to 
prevent  a  clear  injustice  or  an  abuse  of  judicial  process. 
This  case  also  held  that  a  "presentment"  is  an  action 
made  by  grand  jurors  upon  personal  knowledge  or  ob- 
servance of  the  facts  or  upon  the  testimony  of  witnesses, 
speaking  for  the  Court  of  Appeals  for  the  Ninth  Circuit, 
In  the  case  of  Hillman  vs.  U.  S.,  Circuit  Judge  Gilbert, 
in  192  Fed.  264,  said  that  pleas  in  abatement  are  to  be 
strictly  construed  and  that  such  a  plea  to  an  indictment 
that  books  containing  criminating  evidence  were  wrong- 
fully produced  before  the  grand  jury,  was  bad  where  it 
showed  that  the  books  belonged  to  corporations  of  which 
accused  was  president  and  not  to  him  individually.  It 
also  held  in  that  case  that  competent  evidence  upon  which 
an  indictment  was  founded,  consisting  of  books  and  docu- 
ments which  were  unlawfully  seized  and  produced  be- 
fore the  grand  jury,  is  no  ground  for  abating  the  indict- 
ment. 

§  13d.  Motion  to  Quash  Indictment  or  Other  Dilatory 
Plea. — After  the  return  of  a  bill  into  court,  if  there  be  any 
dilatory  plea  that  the  defendant  thinks  to  lodge,  he  must 
speed  to  do  so.  A  delay  of  five  days  in  presenting  such  a 
plea  may  be  fatal  to  him;  and  in  the  presentment  of  such 


42  Federal  Criminal,  Law  Procedure. 

a  plea  there  must  be  specifically  set  out  the  causes  and  par- 
ticulars of  the  injury  to  him.  Agnew  vs.  U.  S.  165  U.  S.  36; 
Lowden  vs.  U.  S.  149  Fed.  675;  Wilder  vs.  U.  S.  143  Fed. 
439.  The  plea  must  be  filed  quickly  and  must  show  in- 
jury to  the  defendant.  U.  S.  vs.  Nevin,  199  Fed.  831; 
Hillman  vs.  U.  S.  192  Fed.  264;  Breese  vs.  U.  S.  172  Fed. 
761,  226  U.  S.  1. 

§  13e.  Information. — Having  spoken  several  times  in 
the  different  sub-divisions  of  this  section  of  an  informa- 
tion, it  will  be  well  to  call  attention  to  the  fact  that  the 
Constitution  of  the  United  States,  in  its  fourth  amend- 
ment, provides,  that  no  warrants  shall  issue,  but  upon 
probable  cause,  supported  by  oath  or  affirmation.  The 
courts  hold,  however,  that  it  is  a  limitation  upon  the 
powers  of  the  federal  government,  but  that  it  does  not 
require  an  information  filed  by  a  district  attorney  of  the 
United  States  to  be  verified  or  supported  by  an  affidavit 
based  on  personal  knowledge,  and  showing  probable 
cause,  unless  such  information  is  made  the  basis  of  an 
application  for  a  warrant  of  arrest.  Thus,  in  a  prosecu- 
tion against  a  corporation  for  the  imposition  of  a  fine  or 
against  a  firm,  for  a  fine  under  the  Pure  Food  Act,  for 
instance,  the  information  of  the  District  Attorney  need 
not  be  verified.    216  Fed.  292. 

There  are,  however,  small  misdemeanors  which,  through 
the  imposition  of  a  fine,  may  result  in  imprisonment. 
Such  prosecutions  may  be  commenced  by  information, 
but  invariably  the  information  must  be  supported  by  oath. 

In  the  case  of  ex  parte  Wilson,  114  U.  S.  417,  the  court, 
in  treating  the  fifth  amendment  to  the  Constitution,  which 
inhibits  all  prosecutions  for  capital  or  other  wise  infa- 
mous crime,  unless  on  a  presentment  or  indictment  of  a 
grand  jury,  authoritatively  decided  the  meaning  to  be 
given  to  the  word  "infamous"  and  that  meaning  is  un- 
derstood to  be  a  crime  punishable  by  imprisonment  for 
a  term  of  years  in  a  penitentiary.  Since,  however,  the 
adoption  of  the  new  code,  there  can  be  no  trouble  with 
reference  to  the  meaning  of  this  term,  because  the  code 
specifically  defines  the  word  "infamous"  or  "felony" 


General  Provisions  Applicable  to  the  Practice.    43 

to  mean  such  crimes  as  are  or  may  be  punishable  by  im- 
prisonment in  the  penitentiary  for  more  than  one  year. 

§  13-f.  A  true  bill  must  be  returned  by  a  properly 
constituted  grand  jury.     Cooper  vs.  U.  S.  247  Fed.  45. 

A  socialist  is  not  entitled  to  a  socialist  on  the  grand 
jury.    Ruthenberg  vs.  U.  S.  245  U.  S.  480. 

Any  discrimination  against  any  class  in  the  make  up 
of  the  grand  jury  will  be  a  ground  for  quashing  the  in- 
dictment.   Mamaux  vs.  U.  S.  264  Fed.  816. 

An  indictment  should  not  be  presented  to,  a  grand  jury 
without  leave  of  the  court.    TJ.  S.  vs.  Jenks,  258  Fed.  763. 

It  is  no  ground  to  quash  an  indictment  that  a  previous 
grand  jury  had  failed  to  indict.  U.  S.  vs.  Thompson,  40 
Sup.  Ct.  Rep.  289. 

The  politics  of  the  clerk  and  commissioner  is  a  discre- 
tionary matter  with  the  judge  is  held  in  the  case  of  U.  S. 
vs.  Caplis,  257  Fed.  840.  ' 

The  return  of  an  indictment  in  one  division  of  a  district 
where  the  crime  was  not  committed  and  the  transferring 
of  the  indictment  afterward  to  the  proper  district  is  held 
to  be  a  legal  procedure  in  Big-fferstaff  vs.  TJ.  S.  260  Fed. 
926.  This  case  holds  that  the  filing  of  the  indictment  and 
the  proceedings  leading  thereto  are  not  a  part  of  the  pros- 
ecution and  by  so  holding  Sec.  53  of  the  Judicial  Code 
which  requires  all  prosecutions  to  be  had  within  the 
division  of  the  district  where  the  crime  is  charged  to 
have  been  committed  is  complied  with. 

Directly  opposite  to  this  holding  is  the  case  of  U.  S. 
vs.  Chennault,  230  Fed.  942.  And  since  the  Chennault 
case  is  based  on  Virginia  vs.  Paul,  148  IT.  S.  107,  that 
the  filing  of  an  indictment  and  its  return  into  court  is 
the  beginning  of  a  criminal  prosecution,  it  would  seem 
that  the  Chennault  case  is  correct.  At  any  rate  the  cau- 
tious prosecutor  will  indict  only  in  the  division  where 
the  crime  was  committed  and  the  cautious  defending 
attorney  will  never  allow  his  client  to  go  to  trial  on  an 
indictment  found  in  a  division  other  than  that  in  which 
the  crime  was  committed  without  saving  the  point  by 
appropriate  motions.  It  is  not  only  statutory  but  con- 
stitutional by  implication.    See  Sees.  17-17-b. 


44  Federal  Criminal  Law  Procedure. 

The  case  of  Logan  vs.  U.  S.  36,  Law  Ed.  429  which 
held  that  a  grand  jury  sitting  for  the  district  could  in- 
dict for  offenses  committed  in  any  division  of  that  dis- 
trict, was  decided  before  the  new  Judicial  Code  was 
passed. 

In  the  case  of  Virginia  vs.  Paul,  148  U.  S.  107,  the 
question  as  to  when  a  prosecution  was  begun  was  direct- 
ly before  the  court  and  the  court  held  that  it  was  begun 
by  the  filing  of  an  indictment. 

Sec.  42  of. the  Judicial  Code  authorizes  the  prosecu- 
tion of  an  offense  in  any  district  in  which  it  was  begun, 
or  into  which  it  was  continued  and  in  passing  upon  this 
section  the  Supreme  Court  in  U.  S.  vs.  Lombardo,  Oct. 
term,  1915,  inferentially  reasons  slightly  in  favor  of  the 
position  here  contended  for. 

Under  Judicial  Code,  Sec.  275,  jurors  in  U.  S.  courts 
are  required  to  have  the  same  qualifications  as  jurors 
in  the  highest  court  of  the  state.  Christopoula  vs.  U.  S. 
230  Fed.  788. 

§  13h.     Illegal  evidence  before  grand  jury. 

An  indictment  cannot  be  set  aside  on  the  ground  that 
evidence  unlawfully  secured  was  before  the  grand  jury 
unless  it  affirmatively  appears  that  there  was  no  lawful 
evidence  presented  upon  which  it  could  have  been 
based.    Anderson  vs.  U.  S.  273  Fed.  21. 

§  13g.  A  stenographer's  notes  are  not  admissible  in 
evidence,  but,  like  other  contemporaneous  writings,  may 
be  used,  under  the  proper  circumstances,  to  refresh  the 
memory  of  the  person  making.  Sneierson  vs.  U.  S.  264 
Fed.  268. 

The  destruction  of  evidence  by  a  defendant  may  be 
proven  as  a  fact  in  the  case.  Ayala  vs.  U.  S.  268  Fed. 
296. 

The  court  may  quash  an  indictment  when  illegally  se- 
cured testimony  is  used  before  the  grand  jury.  U.  S. 
vs.  Silverthorne,  265  Fed.  853. 

A  defect  in  an  indictment  discovered  and  proclaimed 
after  verdict,  must  have  prejudiced  the  defendant  be- 
fore it  can  be  advantaged.  Grantele  vs.  IT.  S.  232  U.  S. 
647. 


Genebal  Peovisions  Applicable  to  the  Peactice.    45 

A  motion  to  quash  an  indictment  on  account  of  the  mis- 
conduct of  the  district  attorney  in  the  grand  jury  room 
must  set  out  facts.  U.  S.  vs.  Gradwell,  227  Fed.  243; 
U.  S.  vs.  Rintelen  235  Fed.  787. 

An  indictment  is  not  subject  to  a  plea  in  abatement 
because  incompetent  testimony  was  presented  to  the 
grand  jury,  unless  competent  evidence  sufficient  to  justi- 
fy the  indictment  was  not  presented.  U.  S.  vs.  Rientelen, 
235  Fed.  787. 

Nine  months  is  too  long  to  wait  to  file  a  plea  in  abate- 
ment complaining  of  the  conduct  of  the  grand  jury  and 
of  the  drawing  of  the  same.  Moffat  vs.  IT.  S.  232  Fed.  522. 
An  information  is  insufficient  which  issues  on  the  infor- 
mation and  belief  of  the  United  States  District  Attorney; 
it  must  be  supported  by  proof  establishing  probable  cause. 
U.  S.  vs.  Baumert,  179  Fed.  735;  U.  S.  vs.  Wells,  225 
Fed.  320. 

An  information  filed  by  a  United  States  Attorney 
which  appears  to  be  based  upon  affidavits  taken  by  a 
notary  public  is  insufficient  because  notaries  have  no  au- 
thority under  the  laws  of  the  United  States  to  adminis- 
ter any  oaths  in  connection  with  criminal  prosecutions. 
U.  S.  vs.  Schallinger,  230  Fed.  290. 

Pleas  in  abatement  were  held  insufficient  in  U.  S.  vs. 
Scott,  232  Fed.  192  and  U.  S.  vs.  Bopp,  232  Fed.  177. 

An  objection  made  on  the  day  the  case  was  called  for 
trial  in  the  nature  of  an  abatement  plea  was  too  late. 
Benson  vs.  U.  S.  240  Fed.  413. 

A  plea  in  abatement  for  illegality  in  drawing  the 
grand  jury  filed  seven  months  after  the  indictment  was 
returned,  and  filed  without  leave  of  the  court,  was  so 
late  that  the  trial  court  refused  to  rule  upon  it  and  the 
Court  of  Appeals  in  passing  upon  the  question  held  that 
such  action  of  the  court  was  not  error  as  it  was  in  the 
trial  courts  sound  discretion  as  to  whether  he  would 
rule  on  a  plea  of  that  sort  filed  so  late.  Matters  vs.  U. 
S.  244  Fed.  736. 

§  14.  Preliminary  Proceedings. — We  have  heretofore 
noticed  the  provisions  relating  to  the  appointment  of 
United    States    Commissioners.     If   warrant   is    secured 


46  Federal.  Criminal.  Law  Procedure. 

prior  to  indictment,  such  warrant  is  issued  under  the 
hand  and  seal  of  the  United  States  Commissioner,  and 
the  offender  is  brought  before  him  for  preliminary  hear- 
ing, and  is  entitled  to  make  his  bail  before  that  officer. 
The  general  authority  for  such  procedure  is  found  in 
Section  1014.  If  one  be  arrested  in  a  district  different 
from  that  in  which  he  is  indicted,  he  is  entitled  to  be 
taken  before  the  nearest  United  States  Commissioner, 
who  inquires  into  his  identity,  and  fixes  bail  for  his  ap- 
pearance before  the  proper  Court  of  the  proper  district. 
If  the  prisoner  cannot  make  the  bail,  application  is  made 
to  the  District  Judge  for  a  warrant  of  removal,  under 
Section  1029. 

The  latest  authority  seems  to  be  that  upon  proper  ap- 
plication, the  District  Court  may  inquire  into  the  validi- 
ty of  the  indictment,  so  far  as  the  jurisdiction  is  con- 
cerned, before  ordering  the  defendant  moved  to  the  dis- 
trict in  which  the  indictment  was  found.  In  United 
States  vs.  Smith,  173  Federal,  this  doctrine  was  an- 
nounced, and  the  Court  refused  to  remove  the  publisher 
of  a  newspaper  in  Indianapolis  to  the  District  of  Colum- 
bia for  trial.  To  the  same  effect  is  Findley  vs.  Treat, 
205  U.  S.,  20;  also  131  Fed.,  968;  U.  S.  vs.  Green,  136  Fed., 
618;  United  States  vs.  Peckham,  143  Fed.,  625;  119  Fed., 
93;  in  re  Benson,  130  Fed.,  486;  United  States  vs.  Green, 
100  Fed.,  941;  Pereles  vs.  Weil,  157  Fed.,  419.  Probable 
cause  is  the  only  question  to  be  inquired  into  when  re- 
moval on  indictment  is  asked.  In  re  Quinn,  176  Fed., 
1020. 

§  14a.  Warrant  to  Issue — When? — We  have  hereto- 
fore spoken  briefly  of  amendment  4  of  the  Constitution, 
Chapter  1,  but  in  this  connection  it  will  be  well  to  repeat 
a  provision  of  that  amendment  which  reads  as  follows: 
"No  warrant  shall  issue  but  upon  probable  cause  sup- 
ported by  oath  or  affirmation."  As  the  government 
grows  larger  and  stronger  and  the  people  are  further  re- 
moved from  their  representatives  and  its  officers,  there 
will  come  a  corresponding  disregard  of  the  individual's 
rights  and  an  overlooking  of  the  principles  that  were  so 
jealously  championed  and  so  dearly  purchased.     There 


General.  Provisions  Applicable  to  the  Practice.    47 

should  never  be  the  arresting  of  one  in  his  right  to  walk 
where  he  pleases  unless  the  Constitutional  provisions  au- 
thorizing such  invasion  of  the  citizen's  right  has  been 
fully  complied  with.  Judge  Ray,  in  U.  S.  vs.  Baumert, 
179  Fed.  738,  said  that  "However  convenient  and  inex- 
pensive it  might  be  to  ignore  this  provision  of  the  Con- 
stitution, a  due  regard  for  the  rights  of  the  citizen  and 
the  danger  of  gross  abuses  of  the  old  system  which  had 
its  basis  in  the  now  exploded  idea  that  the  King— that 
is  the  government — can  do  no  wrong,  led  to  the  adoption 
of  this  amendment  to  the  Constitution."  A  contention 
which  holds  that  this  provision  of  the  Constitution  is 
complied  with  when  an  information  setting  forth  on  in- 
formation and  belief  the  facts  claimed  to  exist,  is  errone- 
ous and  such  an  information  is  not  supported  by  "oath 
or  affirmation."  A  court  will  not  authorize  the  issuance 
of  a  warrant  on  an  information  made  on  the  information 
and  belief  of  the  United  States  District  Attorney,  but 
it  must  be  supported  by  proof  establishing  probable 
cause,  to-wit,  legal  evidence  that  a  crime  has  been  com- 
mitted and  that  there  is  probable  cause  and  belief  that  the 
accused  is  guilty  of  the  commission  thereof.  U.  S.  vs. 
Baumert,  179  Fed.,  735. 

§  14aa.  Warrant  to  Issue — When — Continued. — A 
warrant  will  not  issue  upon  information  and  belief.  The 
fourth  amendment  to  the  constitution  forbids  the  is- 
suance of  warrants  except  on  probable  cause  supported 
by  oath  and  affirmation,  U.  S.  vs.  Michalski,  265  Fed. 
839;  and  a  void  warrant  is  no  protection  to  the  officer 
acting  thereunder  if  he  has  such  knowledge.  252  Fed. 
371.  There  will  be  no  arrest  without  a  warrant  except 
in  misdemeanors  when  committed  in  the  presence  of  the 
officer.  Ex  parte  Harvell,  267  Fed.  997;  and  when  an  ar- 
rest is  made  in  such  case  charge  must  be  filed  at  once. 
See  also  American  Steel  Company  vs.  Davis,  261  Fed. 
800. 

An  information  may  not  be  verified  before  a  Notary 
Public  as  such  officer  is  not  known  to  United  States 
law.    U.  S.  vs.  Schallinger,  230  Fed.  290. 


48  Federal  Criminal  Law  Procedure, 

§  14b.    Questioning  of  Indictment  on  Removal. — In 

the  last  paragraph  of  Section  14  some  cases  are  cited 
which  practically  settle  it  as  a  rule  that  the  removing 
judge  shall  remove  unless  the  validity  of  the  indictment 
is  properly  questioned,  when  warrant  will  be  refused. 
In  U.  S.  vs.  Ruroede,  220  Fed.  210,  it  was  held  prelimi- 
nary affidavit  must  state  offense. 

A  broadening  of  this  right  is  expressed  in  the  case  of 
U.  S.  v.  Campbell,  179  Fed.  762,  wherein  the  court  held 
that  a  defendant  may  overcome  the  presumption  that 
the  offense  was  committed  in  the  jurisdiction  alleged  in 
the  indictment  by  appropriate  evidence  and  show  any 
other  legal  reason  why  removal  should  be  denied.  Com- 
missioner has  no  authority  to  issue  warrant  of  removal. 
Hastings  vs.  Murchie,  219  Fed.  83. 

§  14bb.  On  Removal.  A  prima  facie  right  to  re- 
moval is  made  by  the  government  when  it  introduces 
the  indictment  and  the  defendant  admits  his  identity. 
But  in  the  case  of  Gayon  vs.  McCarthy,  U.  S.  Sup.  Ct., 
40,  U.  S.  Sup.  Ct.  Rep.  244,  the  course  of  permitting  the 
defendant,  after  such  prima  facie  case,  to  introduce  evi- 
dence raising  the  question  of  jurisdiction  and  probabil- 
ity, seems  to  have  been  approved,  though  not  specifically 
so  held. 

The  present  authorities  drive  one  to  the  conclusion 
that  after  such  prima  facie  case  is  made  the  defendant 
may  then  question  the  jurisdiction  of  the  court,  and, 
raise  the  question  as  to  whether  or  not  an  offense  has 
actually  been  committed  by  him,  or  in  other  words 
whether  there  is  probable  cause  to  so  believe.  U.  S.  vs. 
Yount,  267  Fed.  861;  though  in  Rowe  vs.  Boyle,  268  Fed. 
809,  it  was  held  that  the  sufficiency  of  the  indictment  is 
not  an  issue;  that  the  identity  of  the  defendant  makes 
a  prima  facie  case;  while  in  Williams  vs.  Boswell,  255 
Fed.  889,  it  would  seem  that  the  Circuit  Court  of  Ap- 
peals likewise  favors  the  testing  of  the  sufficiency  of  the 
indictment  before  removal. 

In  the  case  of  Rumely  vs.  McCarthy,  256  Fed.  565,  on 
habeas  corpus  to  prevent  removal,  District  Judge  Mayer, 
held  that  both  the  commissioner  and  the  court   should 


General  Provisions  Applicable  to  the  Practice.    49 

have  before  them  the  entire  situation,  that  is  to  say,  all 
of  the  facts  bearing  upon  the  offense  charged.  It  is  not 
thought  that  this  decision  means  that  a  trial  of  the  same 
shall  be  had  but  that  the  jurisdiction  of  the  court,  the 
sufficiency  of  the  indictment,  and  probable  cause  shall 
be  established. 

§  14c.  Arraignment. — Arraignment  of  the  defendant 
has  been  considered  a  necessary  step  in  all  criminal  trials, 
and  the  failure  to  do  so  has  frequently  been  considered 
reversible  error.  Bishop's  New  Criminal  Procedure, 
Vol.  1,  p.  434. 

The  Supreme  Court  of  the  United  States,  in  Crain  v. 
U.  S.  162  U.  S.  625,  reversed  a  judgment  of  conviction 
because  the  record  showed  no  form  of  arraignment  and 
held  that  arraignment  was  essential  to  a  legal  trial  and 
that  in  a  federal  court  no  valid  trial  could  be  held  with- 
out the  requisite  arraignment  and  plea  and  that  such 
must  be  shown  by  the  record  of  conviction.  Johnson  vs. 
U.  S.,  225,  U.  S.  405. 

In  obedience  to  the  popular  demand  for  the  efface- 
ment  of  as  many  technicalities  in  our  court  procedure  as 
possible,  the  Supreme  Court  in  Garland  v.  State,  232  U. 
S.  642,  overruled  its  original  decision  in  the  Crain  case 
and  held  that  the  arraignment  is  no  longer  required  in 
the  United  States  courts  for  the  protection  of  the  ac- 
cused and  said  that  technical  objections  originating  in 
the  early  period  of  English  history,  when  the  accused 
was  entitled  to  but  few  rights,  are  passing  away  and 
should  not  be  allowed  as  to  unimportant  formalities, 
where  the  rights  of  the  accused  have  not  been  preju- 
diced. Of  course  this  decision  does  not  mean  in  any 
sense  of  the  word  that  a  plea  is  not  necessary.  There  is 
no  way  to  join  an  issue  between  the  accused  and  the 
sovereignty  save  and  except  by  the  entering  of  a  plea, 
and  if  the  defendant  stand  mute,  the  court  shall  enter 
a  plea  for  him,  and  that  plea  shall  be  "Not  guilty." 

§  15.     Bail  Bonds,  Etc.— Under  Section  1014,  all  bail 

bonds  and  recognizances  are  to  be  as  near  like  those  in 

the  state  court  as  the  difference  in  codes  and  practice 

will  permit.    In  re  Belknap,  96  Fed.,  614;  U.  S.  vs.  Hunt, 
4 


50  Federal  Criminal.  Law  Procedure. 

166  U.  S.,  1063;  U.  S.  vs.  Lois,  149  Fed.,  277.  In  United 
State  vs.  Zarafonitis,  150  Federal,  97,  the  Court  held 
that  all  proceedings  for  holding  an  accused  person  to 
answer  to  a  criminal  charge  before  a  court  of  the  United 
States  are  assimilated  to  those  under  the  laws  of  the 
state  in  which  the  proceedings  take  place,  and  the  suf- 
ficiency of  a  bail  bond  taken  in  such  proceedings  is  to 
be  determined  by  the  law  of  the  state,  though  in  Hardie 
vs.  United  States,  71  Fed.,  158,  the  Court  held  that  a 
bail  bond  taken  before  a  United  States  Commissioner, 
though  affidavit  and  information  charge  no  offense,  is 
good,  and  may  be  enforced.  The  United  States  may  en- 
force a  forfeited  bail  bond  of  recognizance  by  an  action 
at  law  or  scire  facias.  United  States  vs.  Zarafonitis,  150 
Fed.,  99;  United  States  vs.  Insley,  54  Fed.,  221.  In  170 
Federal,  613,  United  States  vs.  Lee,  the  court  held  that 
an  indemnified  surety  may  be  refused,  and  in  the  same 
Federal  Reporter,  at  page  476,  in  United  States  vs.  Mar- 
rin,  the  Court  held  that  a  defendant  who  goes  where  he 
can  be  arrested,  and  thus  causes  a  breach  of  his  bond, 
renders  his  sureties  liable. 

§  15a.  Bail  During  Trial. — Section  1015  of  the  Re- 
vised Statutes,  which  provides  that  bail  shall  be  admit- 
ted upon  all  arrests  for  offenses  not  punishable  by  death, 
does  not  entitle  the  defendant,  as  a  matter  of  right,  to 
bail  during  his  trial.  U.  S.  vs.  Rice,  192  Fed.  720.  In  5 
Cyc.  the  law  is  thus  stated: 

"Where  the  accused  is  free  on  bail  he  may  be  ordered 
into  actual  custody  during  the  trial  of  the  ease,  nor  will 
bail  be  allowed  during  adjournments  of  the  daily  sessions 
of  the  court."  In  another  list  of  citations  in  Judge  Ray's 
opinion  in  the  above  case,  it  is  held  that  it  is  within  the 
discretion  of  the  court  to  order  defendants  into  actual 
custody,  when  the  trial  is  commenced. 

In  Texas  there  is  a  state  statute  which  gives  the  de- 
fendant the  right  to  go  at  liberty  on  his  bond  during  the 
trial,  and  federal  courts  in  that  state  recognize  the  state 
statute  and  follow  that  procedure,  which  statute  would 
of  course  protect  the  sovereignty  in  any  suit  it  might 
brine:  asranist  the  bondsman  for  forfeited  recognizance. 


General  Provisions  Applicable  to  the  Practice.    51 

The  bondsman  could  not  claim  in  the  face  of  that  statute 
that  their  obligation  had  been  fulfilled  when  there  was  an 
announcement  of  "ready"  or  when  the  case  went  to  trial 
because  they  would  have  executed  the  bond  with  full 
knowledge  of  the  statute  which  gave  their  principal  this 
right. 

§  15aa.  Bond,  Forfeiture  and  Relief.  Sureties  on 
supersedeas  bond  are  not  liable  for  the  failure  of  the  de- 
fendant to  appear  for  re-trial  when  the  obligation  of  writ 
of  error  bond  contained  nothing  more  than,  "surrender 
himself  in  execution  of  the  judgment  and  sentence  ap- 
pealed from  as  said  court  may  direct,  after  the  judgment 
and  sentence  of  said  District  Court  against  him  shall  be 
affirmed.' »    U.  S.  vs.  Murphy,  261  Fed.  751. 

The  death  of  a  defendant  after  forfeiture  is  no  defense 
to  a  recovery  on  the  bond.  De  Orozco  vs.  U.  S.,  237  Fed. 
1008. 

A  petition  for  the  remission  of  the  penalty  of  a  for- 
feited recognizance  under  Sec.  1020,  which  authorizes 
such  remission  in  the  discretion  of  the  court  whenever  it 
appears  to  the  court  that  there  has  been  no  willful  de- 
fault of  the  party  and  that  a  trial  can,  notwithstanding, 
be  had  in  the  cause,  is  properly  signed  by  a  person  who 
put  up  the  money  to  indemnify  the  sureties,  and  who  is 
the  real  party  in  interest,  and  an  allegation  therein  that 
there  was  no  willful  default  of  the  defendant  is  sufficient; 
it  being  neither  necessary  nor  proper  to  plead  the  evi- 
dence. The  relief  from  forfeiture  is  in  the  discretion  of 
the  court  under  this  section.  U.  S.  vs.  Smart,  237  Fed. 
978;   U.  S.  vs.  Jacobson,  257  Fed.  760.    See  also  sec.  4a. 

A  bail  bond  should  conform  in  all  substantial  particu- 
lars to  the  requirements  of  the  law  of  the  state  in  which 
the  commissioner  is  sitting,  under  Sec.  1014,  and  a  judg- 
ment on  a  bail  bond  cannot  be  set  aside  by  the  court  after 
the  expiration  of  the  term  at  which  it  was  rendered,  where 
the  bond  was  valid  and  the  judgment  was  not  a  nullity. 
U.  S.  vs.  Buchanan,  255  Fed.  915. 

The  Court  of  Appeals  for  the  Fifth  Circuit  in  the  case 
of  Anduaga  vs.  U.  S.  254  Fed.  61,  held  that  a  bail  bond  is 
not  invalid  because  of  a  mere  verbal  inaccuracy,  caused 


52  Federal,  Criminal  Law  Procedure. 

by  accidental  transposition  of  words,  which  does  not  work 
injury  to  any  party  in  interest. 

Before  there  can  be  a  recovery  of  a  bail  bond,  it  must 
appear  that  the  offender  was  bailed  by  one  qualified  to 
admit  to  bail.  A  recognizance  is  an  obligation  of  record 
entered  into  before  some  court  of  record  and  need  not  be 
signed  by  the  principal  or  the  surety,  while  a  bail  bond 
is  signed  by  the  party;  the  consideration  being  the  release 
of  one  accused  from  custody.  Ewing  vs.  U.  S.  240  Fed., 
241. 

A  bail  bond  is  a  contract  between  the  sureties  and  the 
government,  and  an  action  on  it  is  a  civil  action,  in  which 
the  law  is  not  required  to  be  construed  strictly,  as  in  a 
criminal  proceeding,  when  the  sufficiency  of  the  pro- 
cedure is  to  be  determined.  U.  S.  vs.  Davenport,  266 
Fed.  425. 

§  16.  Challenges. — Section  819  of  the  Revised  Stat- 
utes allows  the  defendant  twenty  challenges,  and  the 
United  States  five  peremptory  challenges,  when  the  of- 
fense is  treason  or  capital.  On  the  trial  of  any  other 
felony,  the  defendant  is  entitled  to  ten;  and  the  United 
States  to  six  peremptory  challenges;  and  in  all  other 
cases,  civil  and  criminal,  each  party  shall  be  entitled  to 
three  peremptory  challenges.  Under  Section  335  of  the 
1910  Code,  however,  all  offenses  which  may  be  punished 
by  death  or  imprisonment  for  a  term  exceeding  one  year 
are  felonious,  and  all  other  offenses  misdemeanors,  and 
it  is  now  an  easy  matter  to  determine  just  how  many 
challenges  the  defendant  is  entitled  to.  If,  however, 
there  be  more  than  one  defendant,  and  the  trial  is  had 
without  severance,  the  defense  will  be  allowed  no  morp 
challenges  than  if  there  were  but  one  defendant  on  trial, 
R.  S.  819. 

The  number  of  defendants  in  the  indictment,  when 
11  ley  are  all  tried  together,  does  not  increase  the  number 
of  challenges,  in  other  words  the  defendants,  together, 
are  entitled  to  ten.  Schwartzberg  vs.  U.  S.  241  Fed.  348. 
It  would  seem  that  there  is  no  statutory  reason  and  no 
law  rule  of  the  trial  court  which  would  deny  the  trial 
court  the  right,  if  he  should  think  it  in  the  interest  of 


General  Provisions  Applicable  to  the  Practice.    53 

justice,  when  there  is  more  than  one  defendant,  to  in- 
crease the  number  of  peremptory  challenges  for  such 
defendants.  There  might  be  some  local  condition  or 
some  acquaintanceship  or  some  other  attitude  that 
might  make  it  quite  appropriate  to  grant  a  number  of 
defendants    additional  challenges. 

Challenges  Under  the  New  Code.  -Heike  vs.  U.  S. 
192  Fed.  101.  After  consolidation  of  indictments,  see 
Emanuel  vs.  IT.  S.  196  Fed.  317. 

In  a  note  to  Jeff  Harrison  vs.  United  States,  163  U. 
S.,  140,  as  reported  in  the  41  Law  Ed.,  at  page  104,  is  a 
very  valuable  compilation  of  the  decisions  involving  the 
following  points: 

As  to  trial  by  jury,  how  effected  by  Seventh  Amend- 
ment to  the  Constitution,  New  York  Supreme  Court  Jus- 
tices vs.  United  States,  reported  in  76  U.  S.  282. 

As. to  jury,  of  what  number;  practice  in  regard  to; 
illness  or  insanity  of  one;  thirteen  or  eleven  jurors; 
wrong  person  serving  as  juror  by  mistake:  Silsby  vs. 
Foote,  14  Howard,  218;  14  Law  Ed.,  394,  and  the  notes 
on  page  394  of  the  14  Law  Ed. 

As  to  cause  of  challenges  of  jurors  and  their  qualifi- 
cations, Clinton  vs.  Englebrecht,  80  IT.  S.,  449,  13  Wal- 
lace; 20  Law  Ed.,  659,  and  the  note. 

As  to  discharge  or  withdrawal  of  jurors  before  ver- 
dict, effect  of,  United  States  vs.  Perez,  9  Wheat.,  578; 
Vol.  6,  Law  Ed.,  165. 

As  to  impeachment  of  verdict  by  jurors;  affidavit  of 
parties  or  third  persons;  affidavits  of  jury  to  sustain 
verdict,  Doss  vs.  Tyack,  14  Howard,  296;  14  Law  Ed.,  428. 
and  note  thereunder. 

Challenges  to  jurors;  challenges  to  the  array  and  to 
the  panel;  challenges  to  individual  jurors;  peremptory 
and  for  cause,  full  and  complete  note  on  page  104  of 
Book  41,  Law  Ed. 

§  16a.  Consolidation  of  Indictments. — Under  the  Fed- 
eral statute  the  court  has  the  power  to  consolidate  either 
civil  or  criminal  causes  and  when  many  indictments  of 
the  same  sort  against  the  same  party  are  consolidated 
they  merely  become  so  many  counts  in  the  new  bill.    Such 


54  Federal  Criminal  Law  Procedure. 

was  the  holding  in  the  National  bank  prosecution  of  Kel- 
tenbach  vs.  U.  S.  202  Fed.  377,  and  after  such  consolida- 
tion the  former  indictments  becoming  mere  counts  in  the 
last  indictment,  the  defendant  is  entitled  to  but  ten  chal- 
lenges because  he  is  now  on  trial  for  but  one  indictment. 
Keltenbach  vs.  U.  S.  202  Fed.  377. 

16aa.  Consolidation  of  Indictments  Continued. — Sec. 
1024  R.  S.  U.  S.  invests  trial  judges  with  discretionary 
power  to  require  indictments  charging  one  or  more  per- 
sons with  different  though  connected  acts  or  transactions 
of  the  same  class  of  crimes  or  offenses  to  be  consolidated 
for  purpose  of  trial;  this,  of  course,  signifies  a  judicial 
discretion,  soundly  exercised,  and  not  the  uniting  of  of- 
fenses which  for  .that  reason  would  confound  and  prej- 
udice the  defendants.  Kelly  vs.  U.  S.,  258  Fed.  403, 
citing,  Dolan  vs.  U.  S.,  133  Fed.  444.  Similar  power 
exists  independent  of  the  statute,  said  the  Supreme  Qourt, 
in  Logan  vs.  U.  S.,  144  U.  S.  263.  See  also  Brown  vs.  U. 
S.,  143  Fed.  60. 

For  a  discussion  of  this  question,  see  McElroy  vs.  IT. 
S.,  164  U.  S.  76;  "Williams  vs.  U.  S.,  168  U.  S.,  382. 

The  moving  spirit  of  the  rule  seems  to  be  that  while 
distinct  offenses  may  be  consolidated  they  must  be 
"transactions  connected  together,"  and  "of  the  same 
class  of  crimes  or  offenses."    See  also  Sec.  18. 

§  16b.  Impeachment  of  Verdict  by  Juror. — Public 
policy  forbids  that  a  juror  shall  be  allowed  to  orally  or 
by  affidavit  or  otherwise  impeach  his  verdict,  or  in  any 
way  disturb  the  result  arrived  at  by  himself  and  his  fel- 
lows. 

In  one  or  two  of  the  states  such  practice  is  permitted, 
but  the  rule  in  the  United  States  courts  is  against  such 
procedure.  McDonald  et  al.  vs.  Pless  et  al.  206,  Fed.  262; 
Doss  vs.  Tyack,  14  Fed.  296,  14  L.  ed.  428;  Hyde  vs.  U. 
S.,  225  U.  S.  347.    See  also  Section  25. 

§  17.  Indictment  and  Return  of  Same. — The  indict- 
ment should  always  be  returned  into  open  Court  by  the 
entire  grand  jury.  The  best  practice  is  for  the  grand 
jury  to  be  polled  when  they  report  an  indictment.  Of 
course,  there  must  be  at  least  sixteen  present  when  in- 


General  Provisions  Applicable  to  the  Practice.    55 

dictments  are  presented,  which  sixteen  must  include  the 
foreman. 

In  172  Federal,  page  646,  Reingar  vs.  United  States, 
the  Circuit  Court  of  Appeals  held  that  an  indictment 
delivered  by  the  foreman  alone  to  the  clerk  of  the  Court 
when  Court  was  not  in  session,  is  not  a  bill  of  indictment 
within  the  meaning  of  the  Constitution.  I  am  sure  this 
opinion  states  the  law. 

In  the  same  volume  of  the  Federal  Reporter,  in  the  case 
of  the  United  States  against  Breese,  the  District  Court, 
upon  a  somewhat  different  state  of  facts,  holds  a  little  bit 
differently,  but  the  Reingar  case,  cited  supra,  is  undoubt- 
edly the  law.    See  also  Section  13. 

§  17a.  Endorsements  on  Indictments. — In  the  case  of 
Williams  against  the  United  States,  168  U.  S.,  382,  the 
Supreme  Court  held  that  endorsements  on  the  margin  of 
an  indictment,  referring  to  certain  statutes  which  do  not 
support  it,  although  they  may  have  been  erroneously  sup- 
posed to  do  so  by  the  District  Attorney  who  drew  it,  do 
not  make  the  indictment  invalid,  if  it  properly  charges 
an  offense  under  another  statute.  The  exact  words  of  the 
Court  are  as  follows: 

"It  is  said  that  these  indictments  were  not  returned  under  that 
statute  T5481],  and  that  the  above  endorsement  on  the  margin  of  each 
indictment  shows  that  the  District  Attorney  of  the  United  States 
proceeded  under  other  statutes  that  did  not  cover  the  case  of  ex- 
tortion committed  by  Chinese  Inspector  under  color  of  his  office.  It  is 
wholly  immaterial  what  statute  was  in  the  mind  of  the  District  Attor- 
ney when  he  drew  the  indictment,  if  the  charges  made  are  embraced  by 
some  statute  in  force.  The  endorsement  on  the  margin  of  the  indict- 
ment constitutes  no  part  of  the  indictment,  and  does  not  add  to  or 
weaken  the  force  of  its  averments.  We  must  look  to  the  indictment 
itself,  and  if  it  properly  charges  an  offense  under  the  laws  of  the 
United  States,  that  is  sufficient  to  sustain  it,  although  the  representa- 
tive of  the  United  States  may  have  supposed  that  the  offense  charged 
was  covered  by  a  different  statute." 

To  be  in  good  form,  the  bill  should  be  signed  upon  the 
cover  by  the  prosecuting  officer  and  by  the  foreman  of 
the  Grand  Jury,  and  should  be  endorsed,  "A  true  bill," 
and  should  bear  the  file  marks  of  the  clerk;  but  if  the 
bill  be  signed  inside  by  the  prosecuting  officer  and  by 
the  foreman  of  the  Grand  Jury,  the  Courts  hold  that  such 
signatures  are  sufficient. 


56  Federal  Criminal  Law  Procedure. 

It  is  entirely  immaterial  what  provisions  the  various 
states  may  make  with  reference  to  the  forms  of  indict- 
ment therein;  the  Federal  statutes  control  in  the  enforce- 
ment of  the  Federal  criminal  law. 

17aa.  Indictment — Place  of  Finding -Absence  of 
Judge — Counts.— The  indictment  must  be  found  in  the 
division  of  the  district  where  the  offense  was  committed. 
U.  S.  vs.  Chennault,  230  Fed.  942.    See  also  Sec.  13f. 

The  absence  of  the  judge  from  the  district  during  part 
of  the  time  of  the  deliberation  of  the  grand  jury  does  not 
invalidate  the  indictment.  Badders  vs.  U.  S.,  240  U.  S. 
391. 

Later  counts  of  the  indictment  may  refer  to  earlier 
counts  without  re-writing  the  substance  thereof  and  may 
make  the  same  a  part  of  such  later  count.  Anderson  vs. 
U.  S.,  269  Fed.  65.  But  this  method  of  pleading  is  not 
approved.  It  is  thought  that  each  count  should  be  com- 
plete in  itself  even  though  the  courts  do  permit  such 
pleading.  An  endorsement  of  an  indictment  is  no  part 
of  it  even  though  it  may  erroneously  recite  a  statute  un- 
der which  it  was  found.  Wessel  vs.  U.  S.,  262  Fed.  389. 
See  Par.  17a. 

§  18.  Consolidation  of  Indictments.— By  Section  1024 
of  the  Revised  Statutes,  several  charges  aganist  the 
same  person  may  be  included  in  the  same  indictment,  and 
separate  indictments  against  the  same  person  for  the 
same  class  of  crimes  may  be  consolidated  by  the  order  of 
the  Court.  Williams  vs.  United  States,  168  IT.  S.,  388; 
Pointer  vs.  United  States,  151  U.  S.,  396;  Logan  vs.  Unit- 
ed States,  144  U.  S.,  301.  In  the  case  of  United  States 
against  Dietrich,  126  Fed.,  670,  the  doctrine  is  made  clear- 
er by  being  distinguished,  and  the  Court  there  holds  two 
persons  cannot  be  indicted  in  the  same  count,  one  for  giv- 
ing, and  the  other  for  receiving  bribe. 

The  case  of  McElroy  vs.  United  States,  164  U.  S.,  76, 
does  not  in  decision  or  dictum  differ  from  the  above  au- 
thorities. The  inquiry  in  that  case  was,  "whether  counts 
against  five  defendants  can  be  coupled  with  a  count 
against  part  of  them,  or  offenses  charged  to  have  been 
committed  by  all  at  one  time,  can  be  joined  with  an- 


General  Provisions  Applicable  to  the  Practice.    57 

other  and  distinct  offense  committed  by  part  of  them 
at  a  different  time. ' '  The  Court  in  that  case  held  that  the 
statute  did  not  authorize  that  to  be  done,  and  speaking 
thereupon,  said:  "It  is  clear  that  the  statute  (1024)  does 
not  authorize  the  consolidation  of  indictments  in  such  a 
way  that  some  of  the  defendants  may  be  tried  at  the  same 
time  with  other  defendants  charged  with  a  crime  differ- 
ent from  that  for  which  they  all  are  tried. ';  This  deci- 
sion, of  course,  does  not  interfere  with  the  statute,  or  the 
doctrine  announced  by  Mr.  Justice  Harlan  in  the  Wil- 
liams case,  cited  supra,  that,  "The  indictments  against 
the  same  person  charging  offenses  of  the  same  kind, 
provable  by  the  same  sort  of  evidence,  can  be  consoli- 
dated and  tried  together  without  embarrassing  the  ac- 
cused in  making  his  defense. "  This  doctrine  is  approved 
in  Olson  vs.  United  States,  133  Fed.,  852;  Dolan  vs. 
United  States,  133  Fed.,  447,  and  distinguished,  but  not 
controverted,  in  Betts  vs.  United  States,  132  Fed.,  240. 
See  Section  16. 

§  19.  Question  of  Duplicity  in  Indictment. — It  is  too 
late  to  raise  the  question  of  duplicity  after  verdict  by 
motion  in  arrest  of  judgment.  Morgan  vs.  U.  S.,  148  F., 
190;  Bishop's  New  Crim.  Proc,  Vol.  1,  Sections  442,  443; 
U.  S.  vs.  Bayard,  16  F.,  376;  Proler  vs.  U.  S.,  127  F.,  509; 
Conners  vs.  U.  S.,  158  U.  S.,  408.  The  safe  practice  is  to 
raise  all  questions  speedily  by  exception  or  demurrer. 

In  Ammerman  vs.  U.  S.,  216;  Fed.  326,  the  Circuit 
Court  of  Appeals  dismissed  the  indictment  because  of 
duplicity.  A  charge  that  defendant  attempted  to  rob 
a  mail  clerk  and  put  his  life  in  jeopardy  is  not  duplicitous. 
Price  vs.  U.  S.,  218    Fed.  149. 

19a.  Duplicity  Continued. — Felonies  and  misdemeanor 
counts  may  be  joined.  Phillips  vs.  U.  S.,  264  Fed.  657. 
The  allegation  of  different  intents  is  not  duplicitous. 
Boone  vs.  U.  S.,  257  Fed.  963. 

The  allegation  of  embezzlement  of  money  and  stamps 
is  not.    McNeil  vs.  U.  S.,  246  Fed.  827. 

A  conspiracy  to  establish  a  house  of  ill  fame,  bawdy 
house  or  brothel  is  not  duplicitous.  U.  S.  vs.  Casey,  247 
Fed.  362. 


58  Federal.  Criminal.  Law  Procedure. 

An  allegation  that,  "during  April  and  May,"  is  not. 
Eisenberg  vs.  U.  S.,  261  Fed.  598. 

Duplicity  is  the  joinder  of  two  or  more  distinct  of- 
fenses in  one  count.  Epstein  vs.  U.  S.,  271  Fed.  282. 
Only  one  offense  can  be  charged  in  the  same  count.  U. 
S.  vs.  Blakeman,  251  Fed.  306. 

An  indictment  which  charged  that  an  accused  gave  an 
order  for  certain  drugs  and  that  he  failed  to  preserve 
a  duplicate  of  the  order,  each  constituting  an  offense,  and 
also  failed  to  keep  a  record  of  the  amount  of  the  drug  by 
him  dispensed,  was  held  not  to  be  duplicitous  in  U.  S.  vs. 
Charter,  227  Fed.  331. 

An  indictment  which  charged  in  one  count  the  three 
several  offenses  denounced  by  the  Espionage  Act,  Sec.  3, 
is  duplicitous  and,  of  course,  there  can  be  no  amending 
thereof.    U.  S.  vs.  Demboski,  252  Fed.  894. 

It  seems  under  the  last  two  foregoing  authorities  per- 
missible to  plead  in  the  alternative  and  use  the  word 
"and"  wherever  the  statute  uses  the  word  "or." 

So  the  doing  of  a  thing  and  the  attempting  to  do  a 
thing  when  denounced  in  that  way  by  the  statute  may  be 
placed  in  the  same  count  without  being  duplicitous,  is 
held  in  the  last  mentioned  case. 

§  20.  Confessions.— Because  of  the  adoption  by  many 
of  the  States  of  statutes  which  prescribe  certain  condi- 
tions limiting  or  admitting  confessions  of  those  charged 
with  crime  in  evidence,  it  is  well  to  bear  in  mind  that  no 
statute  bearing  thereon  has  been  passed  by  Congress.  The 
Fifth  Amendment  to  the  Constitution  and  Section  860 
of  the  1878  Revised  Statutes,  that  bear  upon  such  testi- 
mony, are  as  follows: 

" Nor  shall  any  person  be   compelled,   in   any  criminal   case, 

to  be  a  witness  against  himself." — Fifth  Amendment  to  the  Constitution. 

"No  pleading  of  a  party,  nor  any  discovery  or  evidence  obtained 
from  a  party  or  witness  by  means  of  a  judicial  proceeding  in  this  or 
any  foreign  country,  shall  be  given  in  evidence  or  in  any  manner 
used  against  him  or  his  property  or  estate  in  any  court  of  the  United 
States  in  any  criminal  proceedings,  or  for  the  enforcement  of  any 
penalty  of  forfeiture;  provided,  that  this  section  shall  not  exempt 
any  party  or  witness  from  prosecution  and  punishment  for  perjury 
committed  in  discovering  or  testifying,  as  aforesaid." — Section  860, 
1878  Revised  Statutes,  U.  S. 


General  Peovisions  Applicable  to  the  Practice.    59 

Of  course,  the  limitations  and  meaning  of  Section  860 
have  been  determined  and  decided  repeatedly.  In  170 
Federal,  715,  Cohen  vs.  United  States,  the  Court  held  that 
it  applied  to  bankrupt  schedules,  and  that,  therefore,  such 
schedules  were  not  admissible  against  the  bankrupt.  The 
contrary  was  held  in  United  States  vs.  Brod,  176  Federal, 
page  165,  and  the  latter  is  perhaps  the  ranking  authority. 
In  United  States  vs.  Bell,  81  Federal,  830,  the  Court  held 
that  the  constitutional  protection  was  broader  than  Sec- 
tion 860,  and  in  passing  upon  a  prosecution  for  perjury, 
alleged  to  have  been  committed  in  a  statement  made  be- 
fore a  Pension  Examiner  by  an  ignorant  person,  such 
statement  was  excluded  on  the  proposition  that  while  the 
person  appeared  before  the  Examiner,  and  submitted  to 
the  examination,  yet  such  appearance  was  not  conclusive 
that  the  statement  was  voluntary,  and  that  the  constitu- 
tional right  of  the  person  to  remain  silent  had  not  in  fact 
been  infracted.    See  also  sec.  7. 

The  sole  legal  test,  in  the  Federal  courts,  is  whether 
the  same  was  free,  voluntary,  and  without  compulsion 
or  inducement  of  any  kind.  The  fact  that  a  con- 
fession was  made  while  the  party  was  under  arrest 
is  entirely  immaterial,  but  it  devolves  upon  the  prose- 
cution to  show  that  the  confession  was  voluntary.  The 
authorities  conflict  somewhat  as  to  whether  the  Court 
or  the  jury  shall  determine  this  question.  The  better 
authority  seems  to  be  that  the  Court  shall  determine  it, 
because,  manifestly,  the  admission  of  a  confession  to  a 
jury,  under  the  thought  and  instruction  that  it  must 
determine,  first,  whether  the  same  was  voluntary  before 
they  can  give  it  consideration,  would  be  entirely  in- 
adequate to  sufficiently  safeguard  the  interest  of  the  de- 
fendant. At  page  588  of  Bishop's  Criminal  Procedure, 
that  authority  holds  that  the  prosecution,  in  making 
the  opening  statement  to  the  jury,  should  not  make  any 
detailed  statements  that  show  a  confession  to  have  been 
made,  for  the  reason  that  the  admissibility  of  such  con- 
fession must  first  be  passed  upon  by  the  Court.  At  page 
619  of  the  same  volume,  the  same  author  again  announces 
that  whether  a  confession  is  voluntarv  or  not  is  to  be 


60  Federal  Criminal  Law  Procedure. 

determined  by  the  Court,  and  cites  Ellis  vs.  State,  65 
Miss.,  44;  7  Ana.  St.,  634;  State  vs.  Crowson,  98  N.  C, 
595;  Corley  vs.  State,  50  Arkansas,  305;  also  Section 
1220  of  the  First  Volume  of  Bishop's  Criminal  Pro- 
cedure. 

Underbill  on  Criminal  Evidence,  at  page  161,  para- 
graph 126,  says  that  the  preliminary  question,  Was  the 
confession  voluntary?  bearing  directly  upon  its  com- 
petency as  evidence,  must  be,  according  to  the  majority 
of  the  cases,  decided  by  the  Court  as  a  mixed  question 
of  law  and  fact.  This  statement  is  supported  by  a  long 
list  of  authorities,  some  of  which  go  to  the  point  of  hold- 
ing it  error  for  the  Court  not  to  determine  this  question 
before  the  confession  is  submitted  to  the  jury.  From  a 
careful  consideration  of  such  authorities,  it  may  be  stated 
that  the  weight  of  the  same  is  for  the  preliminary  de- 
termination by  the  Court  of  this  question,  before  per- 
mitting the  confession  to  go  to  the  jury. 

In  discussing  the  statement  that  the  prosecution  must 
show  that  the  confession  is  voluntary,  Underbill,  at  page 
161-162  of  his  work  on  Criminal  Evidence,  states  that 
many  of  the  cases  sustain  this  -proposition,  and  require 
the  state  to  show  by  some  evidence  that  the  confession 
was  freely  and  voluntarily  made,  but  that  other  author- 
ities sustain,  at  least  in  the  absence  of  evidence  to  the 
contrary,  the  very  reasonable  theory  that  a  confession, 
like  every  act  or  utterance  which  is  the  result  of  human 
agency,  is  presumed  to  have  been  voluntary  until  the 
contrary  is  shown.  This  latter  view  would  throw  the 
burden  of  proving  that  the  confession  was  involuntary 
upon  the  accused;  but  whichever  position  is  right,  the 
defendant  is  always  entitled  to  show,  by  preliminary 
evidence,  that  the  confession  was  not  voluntary,  and  it 
is  the  duty  of  the  Court,  in  determining  the  competency 
of  the  confession,  not  only  to  consider  the  evidence  of 
the  state,  but  the  evidence  elicited  by  the  accused  in  his 
favor,  as  well.  In  State  vs.  Fidment,  35  Iowa,  545;  Ru- 
fer  vs.  State,  25  Ohio,  464;  State  vs.  Miller,  42  La.,  1186; 
Simmons  vs.  State,  61  Miss.,  243;  Commonwealth  vs. 
Culver,  126  Mass.,  464;    State  vs.  Kinder,  96  Mo.,  548, 


Geneeal  Provisions  Applicable  to  thf  Practice.    61 

the  refusal,  before  the  confession  was  admitted,  to  al- 
low counsel  for  the  prisoner  to  cross  examine  the  wit- 
ness as  to  the  voluntary  character  of  the  confession,  or 
to  allow  the  accused  to  testify  and  explain  his  mental 
condition  when  it  was  made,  or  to  show  by  the  evidence 
of  others,  that  it  was  improperly  obtained,  were  revers- 
ible error. 

In  Hopt  vs.  Utah,  110  U.  S.,  574,  the  Court  said  that, 
"the  admissibility  of  such  evidence  (confessions)  so 
largely  depends  upon  the  special  circumstances  connected 
with  the  confession  that  it  is  difficult,  if  not  impossible, 
to  formulate  a  rule  that  will  comprehend  all  cases,  as  the 
question  is  necessarily  addressed,  in  the  first  instance, 
to  the  judge,  and  since  his  discretion  must  be  controlled 
by  all  attendant  circumstances,  the  Courts  have  wisely 
forborne  to  mark  with  absolute  precision  the  limits  of 
admission  or  exclusion."  This  latter  utterance,  there- 
fore, is  the  authority  that  binds  in  the  United  States 
Courts. 

It  was  also  said,  in  Wilson  vs.  United  States,  162  U. 
S.,  613,  40  Law  Ed.,  1090,  that  statements  by  an  accused, 
not  under  oath,  voluntarily  made  in  answer  to  questions 
of  a  Commissioner,  not  as  a  confession  of  guilt,  but  as 
explanations  to  avert  suspicion  from  himself,  are  not 
inadmissible  because  the  Commissioner  failed  to  inform 
him  that  he  could  have  the  aid  of  counsel,  or  to  warn 
him  that  his  statements  might  be  used  against  him,  or 
to  advise  him  that  he  need  not  answer.  This  reasoning, 
of  course,  finds  its  support  in  the  existence  of  extrane- 
ous facts  which  have  been  discovered  through  the  state- 
ments of  the  accused,  or  otherwise,  and  such  statements 
are,  therefore,  admissible,  though  made  involuntarily, 
or  though  made  to  conceal  guilt,  and  a  different  rule  re- 
lates to  them  from  that  which  respects  confessions  which 
are  guarded  by  the  great  probability  that  the  prisoner 
has  been  influenced  by  his  expectation  of  punishment  or 
of  immunity,  to  speak  what  is  not  true. 

The  leading  case  respecting  a  judicial  determination 
of  what  is  voluntary  and  what  is  not  voluntary,  is  the 
case  of  Brain  vs.  United  States,  168  U.  S.,  532,  42  Law 


62  Fedeeal  Criminal  Law  Procedure. 

Ed.,  568.  In  that  case,  the  accused  was  an  officer  of  a 
ship  upon  which  a  triple  murder  had  been  committed. 
He  and  a  subordinate  were  placed  in  irons,  and  carried 
into  port.  The  prisoner  Bram  was  taken  before  a  detec- 
tive at  Halifax,  who  searched  him,  and  stripped  him, 
and  took  what  the  bill  of  exceptions  called  "extraordi- 
nary liberties"  with  him,  and  thereupon  questioned  him 
as  follows: 

"When  Bram  came  into  my  office,  I  said  to  him,  'Bram,  we  are  trying 
to  unravel  this  horrible  mystery.  Your  position  is  rather  an  awk- 
ward one.  I  have  had  Brown  in  this  office,  and  he  made  a  statement 
that  he  saw  you  commit  the  murder."  He  answered,  'He  could  not 
have  seen  me.  Where  was  he?'  I  said,  'He  states  he  was  at  the 
wheel.'  'Well,'  said  he,  'he  could  not  see  me  from  there."  I  said,  'Now 
look  here.  Bram,  I  am  satisfied  that  you  killed  the  Captain  from  all  I 
have  heard  from  Brown,  but,'  I  said,  'some  of  us  here  think  you  could 
not  have  done  all  that  crime  alone.  If  you  had  an  accomplice,  you 
should  say  so,  and  not  leave  the  blame  of  this  horrible  crime  on  your 
own  sholders.'  He  said,  'Well,  I  think,  and  many  others  on  board 
the  ship  think,  that  Brown  is  the  murderer,  but  I  don't  know  anything 
about  it.'     He  was  rather  short  in  his  replies." 

Because  of  the  admission  of  this  testimony  or  confes- 
sion, the  Supreme  Court  of  the  United  States  reversed 
the  judgment  of  conviction,  and  granted  a  new  trial. 
Compendiously  stated,  the  rulings  upon  the  same,  by 
that  Court,  were  as  follows:  The  use  which  was  made 
of  the  prisoner's  statement  precludes  the  prosecution 
from  saying  that  it  was  not  used  to  his  prejudice,  and 
after  so  using  the  testimony  the  prosecution  will  not  be 
heard  to  assert  that  the  confession  was  not  prejudicial, 
because  it  did  not  tend  to  prove  guilt.  The  sole  question 
with  reference  to  the  voluntary  character  of  an  alleged 
confession  depends  on  whether  the  making  of  the  state- 
ment was  voluntary  and  without  inducement  or  com- 
pulsion, and  not  whether  the  particular  communications 
contained  in  it  were  voluntary  or  not.  The  mere  fact 
that  a  confession  is  made  to  a  police  officer  while  the  ac- 
cused is  under  arrest,  in  or  out  of  prison,  or  is  drawn  out 
by  his  questions,  does  not  necessarily  render  a  confession 
involuntary,  but,  as  one  of  the  circumstances,  such  im- 
prisonment or  interrogation  may  be  taken  into  account 


General  Provisions  Applicable  to  the  Practice.    63 

in  determining  whether  or  not  the  statements  made  by 
the  prisoner  are  voluntary. 

The  above  decision  is  cited  and  applied  in  Sorenson 
vs.  United  States,  143  Federal,  820,  by  the  Circuit  Court 
of  Appeals  for  the  Eighth  Circuit,  to  the  protection  of 
a  defendant  from  the  use  of  a  confession  which  was  se- 
cured from  him  by  a  Post  office  Inspector,  who  had  ad- 
vised the  defendant  that  he,  the  Inspector,  had  an  ab- 
solutely good  case  against  him  for  robbing  the  post  office, 
and  advised  him  that  the  thing  for  him  to  do  was  to  plead 
guilty  and  throw  himself  on  the  mercy  of  the  Court,  and 
that  by  doing  so,  the  offense  against  the  State  laws,  would 
probably  be  overlooked. 

It  may  be  stated,  therefore,  as  a  general  proposition, 
that  the  sole  question  for  determination  in  the  Federal 
practice  is,  whether  the  confession  was  voluntary — that 
is,  made  without  inducement  or  offer  or  promise  of  any 
sort. 

§  20a.  Confession  Continued. — It  is  not  an  element 
of  a  voluntary  confession  under  the  federal  authorities 
and  under  the  common  law  rule  that  such  confession 
shall  have  been  made  after  warning,  nor  when  not  under 
arrest.  Shaw  vs.  U.  S.,  180  Fed.  348.  Upon  request 
by  the  accused  it  is  proper  to  specially  instruct  that  a 
confession  must  be  found  to  have  been  made  voluntarily 
before  it  could  be  considered.  Shaw  vs.  U.  S.,  180  Fed. 
348.    See  also  U.  S.  vs.  Lydecker,  275  F.  976. 

Of  course  it  will  be  borne  in  mind,  as  heretofore  sug- 
gested, that  the  court  passes  upon  this  preliminary  in- 
quiry before  submitting  the  testimony  to  the  jury. 
8  20b.  Confession  Continued. — See  Sec.  4.  a. 
Evidence  illegally  secured  on  a  warrant  may  be  used 
when  no  motion  is  made  to  return  it,  MacKnight  vs.  U. 
S.,  263  Fed.  832. 

The  court  will  order  property  illegally  secured  re- 
turned, U.  S.  vs.  Meresca,  266  Fed.  713;  and  such  order 
cannot  be  appealed  from,  U.  S.  vs.  Marquette,  270  Fed. 
214;  see  also  U.  S.  vs.  Friedburg,  233  Fed.  313;  Flags- 
vs.  U.  S.  233  Fed.  481;  U.  S.  vs.  Schallinger,  230  Fed. 
290. 


64  Federal,  Criminal.  Law  Procedure. 

Evidence  that  has  been  given  up  cannot  be  recovered 
was  held  in  Linn  vs.  U.  S.  234  Fed.  543. 

The  case  of  Adams  vs.  N.  Y.,  192  U.  S.  575,  seems  to 
be  challenged  by  U.  S.  vs.  Abrams,  230  Fed.  313,  in  re 
Marx,  255  Fed.  344,  and  Silverthorne  vs.  U.  S.  40  Sup. 
Ct.  Rep.  182.  Affirmance  of  the  far  reaching  doctrines 
is  made,  that,  evidence  which  has  been  illegally  secured 
by  the  government  must  be  returned  upon  application 
and  cannot  be  made  use  of  by  the  government  in  any 
way;  in  other  words  the  government  cannot  advantage 
by  its  own  wrong;  to  the  same  effect  are  cases  cited  un- 
der Sec.  4a  herein.  While  the  case  of  Lyman  vs.  U. 
S.  241  Fed.  945,  holds  to  the  old  doctrine  of  192  U.  S.,  the 
Adams  case,  that  papers  which  are  pertinent  to  the  issue 
which  may  have  been  illegally  taken  does  not  constitute 
a  valid  objection  to  their  admissibility. 

The  case  of  U.  S.  vs.  Gouled,  253  Fed.  242,  which  per- 
mitted the  introduction  of  certain  written  evidence 
seized  under  a  search  warrant  and  in  which  the  court 
refused  to  quash  an  indictment  found  upon  such  testi- 
mony was  reasoned  out,  by  the  Supreme  Court  of  the 
United  States  in  the  same  case  at  page  261,  41  Sup.  Ct. 
Rep.,  for  the  proclamation  of  the  doctrine  that  evidence 
illegally  taken  by  improper  searches  and  seizures  must 
be  returned  and  conviction  set  aside,  if  secured  thereon. 

These  observations  are  made  because  a  confession  at 
common  law,  must  have  the  element  of  the  voluntary 
before  it  is  admissible. 

The  question  of  the  admissibility  of  a  confession  is 
for  the  court  but  when  the  evidence  is  conflicting,  the 
court  may  submit  it  to  the  jury  with  instructions  to  dis- 
regard it  if  not  voluntary.  McCool  vs.  U.  S.  263  Fed. 
55;    see  also  U.  S.  vs.  Oppeinheim,  228  Fed.  221. 

Where  a  defendant,  charged  with  stealing  a  package 
from  the  postoffice,  where  he  was  employed,  was  taken 
in  charge  by  inspectors  and  held  twenty  four  hours, 
without  being  permitted  to  communicate  with  friends  or 
procure  counsel,  but  compelled  to  sleep  in  the  room  with 
one  of  them  and  being  told  by  them  that  they  believed 
him  guilty  and  had  evidence  which  made  it  look  bad  for 


General  Provisions  Applicable  to  the  Practice.    65 

him,  a  confession,  written  by  the  inspectors,  but  signed 
by  him  at  the  end  of  that  time,  held  involuDtary,  and  not 
admissible  against  him,  by  the  Court  of  Appeals,  in, 
Purpura  vs.  U.  S.,  262  Fed.  473. 

There  is  no  oppression  so  oppressive  as  official  op- 
pression— that  oppression  which  under  the  majesty  of 
the  law  asserts  and  carries  forward  a  wrong. 

A  confession  secured  from  accused  while  he  was  in 
jail  through  questions  asked  by  an  agent  of  the  depart- 
ment of  Justice,  without  accused  having  been  warned 
of  his  right  to  remain  silent  and  of  the  effect  of  his  an- 
swers as  evidence  against  him,  was  secured  by  compul- 
sion, contrary  to  Const.  U.  S.  Amendment  V.  U.  S.  v. 
Kallas  272  F.  743. 

§  21.  Admissibility  of  Documentary  Evidence  Se- 
cured Illegally. — In  line  with  the  thought  that  we  have 
been  pursuing  is  the  inquiry  as  to  whether  documentary 
evidence,  letters,  papers,  etc.,  secured  in  violation  of  the 
Constitutional  provision  guaranteeing  the  private  citi- 
zen against  illegal  searches  and  seizures,  can  be  used 
in  evidence  against  the  party  from  whom  they  were  so 
secured.  The  case  of  Adams  vs.  New  York,  192  U.  S., 
586,  48  Law  Ed.,  577,  by  the  Supreme  Court,  holds  that 
the  admissibility  of  documentary  evidence,  tending  to  es- 
tablish the  guilt  of  an  accused  of  the  offense  charged, 
is  not  affected  because  it  was  secured  in  violation  of  the 
prohibition  against  unreasonable  searches  and  seizures, 
and  the  self-incrimination  of  an  accused  is  not  affected 
by  the  introduction  in  evidence  against  him  of  certain 
private  papers  found  in  the  execution  of  a  search  war- 
rant, where  he  did  not  take  the  witness  stand  in  his  own 
behalf,  as  was  his  privilege,  and  was  not  compelled  to 
testify  concerning  the  papers  or  make  any  admission 
about  them.  This  was  a  case  that  originated  under  the 
gambling  paraphernalia  statute  of  New  York  City,  and 
the  officers,  armed  with  a  search  warrant  under  that  stat- 
ute, secured  certain  private  papers  that  were  not  called 
for,  nor  included,  in  the  search  warrant,  but  which  were 
decidedly   damaging   testimony   against   the   defendant, 

and  upon  this  state  of  facts  the  direct  question  above 
5 


66  Federal  Criminal  Law  Procedure. 

suggested  was  passed  upon.  The  Supreme  Court  lays 
down  the  rule  in  the  following  terms,  quoting  from 
Greenleaf,  Volume  1,  Paragraph  254a: 

"It  may  be  metioned  in  this  place  that  though  papers  and  other 
subjects  of  evidence  may  have  been  illegally  taken  from  the  possession 
of  the  party  against  whom  they  are  offered,  or  otherwise  unlawfully 
obtained,  this  is  no  valid  objection  to  their  admissibility,  if  they  are 
pertinent  to  the  issue.  The  Court  will  not  take  notice  how  they  were 
obtained,  whether  lawfully  or   unlawfully,  nor  will   it  form  an  issue 

to   determine   that   question Evidence  which    is   pertinent   to  the 

issue  is  admissible,  although  it  may  have  been  procured  in  an  irregu- 
lar, or  even  in  an  illegal  manner.  A  trespasser  may  testify  to  perti- 
nent facts  observed  by  him,  or  may  put  irt  evidence  pertinent  articles 
or  papers  found  by  him  while  trespassing.  For  the  trespass,  he  may 
be  held  responsible  civilly,  and  perhaps  criminally,  but  his  testimony 
is  not  thereby  rendered  incompetent." 

In  line  with  the  cases  and  authorities  cited  above  was 
the  holding  of  District  Judge  Thompson  in  the  case  of 
Firth-Sterling  Steel  Co.  vs.  Bethlehem  Steel  Co.,  199, 
Fed.  353,  where  the  information  in  question  consisted 
of  original  drawings  of  armor-piercing  projectiles  sub- 
mitted under  orders  of  secrecy  and  the  possession  of 
which  was  subsequently  wrongfully  obtained,  but  the 
court  said  that  the  illegality  of  the  method  by  which  evi- 
dence has  been  obtained  does  not  affect  its  admissibility. 
See  also  Hartman  vs.  U.  S.,  168;  Fed.  30. 

This  doctrine  has  been  approved  and  followed  by  the 
Federal  Courts,  even  though  the  property  unlawfully  or 
irregularly  seized  belonged  to  a  third  person,  as  was  de- 
cided in  U.  S.  vs.  McHie  et  al.,  196  Fed.  586.  In  that  case 
District  Judge  Sanborn  held  that  a  Federal  Court  has 
power  to  impound  books  and  papers,  although  the  prop- 
erty of  a  third  person  and  unlawfully  and  irregularly 
seized  by  officers  of  the  government,  where  they  are 
shown  to  be  essential  evidence  in  a  criminal  case. 

In  Hardesty  et  al.  vs.  U.  S.,  164  Fed.  420,  the  Circuit 
Court  of  Appeals  for  the  Sixth  Circuit  decided  in  a  per 
curiam  opinion  that  it  is  no  objection  to  the  admissibility 
of  evidence  which  is  pertinent  to  the  issue  in  a  criminal 
case  that  it  was  obtained  by  means  of  a  search  warrant 
illegally  issued  or  executed. 


General  Provisions  Applicable  to  the  Practice.    67 

To  the  same  effect  was  the  decision  of  the  Circuit  Court 
of  Appeals  for  the  Ninth  Circuit  in  Lum  Yan  vs.  U.  S., 
193  Fed.  970,  which  determined  that  letters  were  not  in- 
admissible against  the  accused  because  unlawfully  seized 
by  the  authorities,  where  the  search  does  not  appear  to 
have  been  seriously  resisted. 

§  21a.  Method  for  Recovering  Illegally  Secured  Evi- 
dence.— A  party  may,  upon  the  filing  of  a  proper  motion 
setting  forth  the  facts,  secure  from  the  court  in  which 
the  cause  is  pending  an  order  directing  the  prosecution 
to  return  to  him  such  papers  or  evidence  as  was  illegally 
secured. 

Certain  inspectors  having  accompanied  a  marshal  to 
serve  a  warrant  on  defendants,  arresting  them  for  mis- 
use of  the  mails  in  furtherance  of  a  scheme  to  defraud, 
remained  and  searched  their  office  and  seized  their  books, 
papers,  letters  and  documents,  removing  the  same  to  their 
office,  whence  they  were  ordered  delivered  to  the  clerk 
of  the  court  and  sealed.  Upon  this  state  of  facts,  after 
a  motion  had  been  filed  to  have  the  papers  returned,  Dis- 
trict Judge  Pollack,  in  U.  S.  vs.  Mounday  et  al.,  208  Fed. 
186,  held  that,  the  material  having  been  secured  as  the 
result  of  an  unconstitutional  search  and  seizure,  defend- 
ants were  entitled  to  have  the  same  returned  to  them, 
though  such  documents  might  contain  incriminatory  evi- 
dence which  the  district  attorney  desired  to  submit  to 
the  grand  jury  and  use  against  them. 

When,  however,  there  is  an  element  of  the  voluntary 
surrender,  no  relief  will  be  granted  upon  such  an  appli- 
cation, and  this  applies  to  oral  testimony  by  one.  Powers 
vs.  U.  S.,  223  U.  S.  303;  Weeks  vs.  U.  S.,  232  U.  S.  383; 
U.  S.  vs.  Hart,  214  Fed.  655;  same  case,  216  Fed.  374. 

In  Weeks  vs.  U.  S.,  232  U.  S.,  383,  cited  above,  the 
court  held  that  while  an  incidental  seizure  of  incriminat- 
ing papers,  made  in  the  execution  of  a  legal  warrant, 
and  their  use  as  evidence,  may  be  justified,  and  a  collat- 
eral issue  will  not  be  raised  to  ascertain  the  source  of 
competent  evidence,  Adams  vs.  N.  Y.,  192  U.  S.  585, 
that  rule  does  not  justify  the  retention  of  letters  seized 
in  violation  of  the  protection  given  by  the  Fourth  Amend- 


68  Federal,  Criminal  Law  Procedure. 

ment  where  an  application  in  the  cause  for  their  return 
has  been  made  by  the  accused  before  trial. 

Continuing,  the  court  said  in  that  cause  that  the  court 
has  power  to  deal  with  papers  and  documents  in  the 
possession  of  the  district  attorney  and  other  officers  of 
the  court  and  to  direct  their  return  to  the  accused,  if 
wrongfully  seized,  and  where  letters  and  papers  of  the 
accused  were  taken  from  his  premises  by  an  official  of 
the  United  States,  acting  under  color  of  office,  but  with- 
out any  search  warrant  and  in  violation  of  the  constitu- 
tional rights  of  accused  under  the  fourth  amendment, 
and  a  seasonable  application  for  return  of  the  letters 
and  papers  has  been  refused,  and  they  are  used  in  evi- 
dence over  his  objections,  prejudicial  error  is  committed 
and  the  judgment  should  be  reversed. 

§  21aa. — Method  for  Recovering  Illegally  Secured 
Evidence  Continued. —  Congress  having  specifically  au- 
thorized United  States  Commissioners  to  issue  warrants 
in  certain  cases,  and  having  conferred  no  authority  to 
issue  warrants  to  search  and  seize  letters,  writings,  etc., 
used,  or  intended  to  be  used,  in  the  execution  of  a  scheme 
to  defraud,  in  the  execution  of  which  the  mails  are  used, 
a  United  States  Commissioner  had  no  authority  to  issue 
a  search  warrant  for  such  purposes,  and,  upon  motion 
by  the  defendant,  the  papers  were  ordered  restored  to 
him,  in   U.  S.  vs.  Jones,  230  Fed.  262. 

One  who  kills  an  officer  who  is  acting  under  a  void 
search  warrant  committs  no  offense,  U.  S.  vs.  Pitotto, 
267  Fed.  603. 

Where  evidence  has  been  secured  illegally,  and,  then 
introduced  in  evidence  on  the  trial,  over  objection,  a 
new  trial  will  be  granted,  U.  S.  vs.  Hill,  263  Fed.  812. 

An  order  denying  the  restoration  of  documents  al- 
leged to  have  been  illegally  taken,  and  being  held  as  evi- 
dence, is  an  interlocutory  order  in  a  criminal  case,  and 
under  Sec.  128,  of  the  Judicial  Code,  is  not  reviewable 
by  the  Court  of  Appeals.  Coastwise  Lumber  Co.  vs.  U. 
S.,  259  Fed.  847. 

§  21b.  Production  of  Documents. — The  constitutional 
guarantees  protect   the   defendant   in  a  criminal   cause 


General  Provisions  Applicable  to  the  Practice.    69 

against  involuntary  disclosures  or  against  unreasonable 
searches  and  seizures.  In  Schatz  vs.  Winton  Motor  Car- 
riage Co.,  197  Fed.  777,  Circuit  Judge  Noyes  held  that 
the  production  of  documents,  by  the  adverse  party  in  ac- 
tions at  law  in  Federal  Courts  is  governed  by  the  Stat- 
utes of  the  United  States,  and  under  such  statutes  a 
court  at  law  cannot  compel  a  party  in  an  action  to  pro- 
duce documents  in  advance  of  the  trial  for  the  inspec- 
tion of  the  other  party,  citing  Carpenter  vs.  Winn,  221 
U.  S.  533. 

§  21bb.    Production  of  Documents  Continued. 

It  is  error  to  demand,  that  the  defendant  produce 
papers  in  his  possession.  But  where  the  court  directs 
the  jury  to  disregard  the  demand,  and  the  defendant 
later  offered  in  evidence  all  of  the  checks  which  the 
prosecution  had  previously  demanded  from  him,  the 
error  was  cured;  or,  at  any  rate,  was  not  a  reversable 
error  under  the  circumstances.  Bain  vs.  U.  S.,  262  Fed. 
664. 

§  22.  Comments  or  Improper  Argument  of  District 
Attorney. — Too  much  care  cannot  be  given  by  counsel  to 
words  they  use  in  addressing  the  jury.  Attorneys  for  the 
prosecution  and  the  defense  should  be  jealous  indeed  to 
guard  themselves  from  remarks  that  are  unsupported  by 
the  testimony,  or  that  are  individual  opinions  rather  than 
legitimate  deductions  from  the  law  and  the  evidence.  One 
of  the  abuses  of  the  modern  practice  is  the  proneness  of 
the  attorneys  defending  to  express  unbounded  belief  in 
the  innocence  of  their  client,  even  to  the  staking  of  per- 
sonal reputation.  Great  censure  also  is  due  the  prosecu- 
tion for  intemperate  and  immoderate  expressions,  due 
ofttimes  to  the  vehemence  of  opposing  counsel  but  never 
excused.  The  only  remedy  the  prosecuting  officer  has 
against  such  unfair  argument  is  to  appeal  to  the  trial 
judge.  Defending  counsel  can  save  the  point  by  bill  of 
exception,  and  present  the  language  of  the  prosecuting 
officer  to  the  appellate  court  for  review.  Trial  judges 
should,  therefore,  be  extremely  careful  to  enforce,  by 
proper  ruling,  not  prejudicial  to  the  interests  of  the 
prosecution  or  the  rights  of  the  defendant,  a  fair  argu- 


70  Fedeeal  Criminal  Law  Peocedtjee, 

ment,  devoid  of  personal  opinions,  and  as  free  from 
prejudicial  and  inciting  statements  as  fair  discussion  will 
permit.  In  the  case  of  Williams  against  the  United 
States,  168  U.  S.,  382,  the  defendant  was  convicted  of 
extortion  in  exacting  money  from  Chinese  immigrants 
for  permission  to  land  and  remain  in  the  United  States. 
The  defendant  proposed  to  show  by  witnesses  that  while 
he  was  acting  in  such  official  position,  there  were  more 
females  sent  back  to  China  than  ever  were  sent  back  be- 
fore or  after.  The  representative  of  the  government  ob- 
jected to  this  evidence,  as  irrelevant,  saying  in  open 
court,  and  presumably  in  the  hearing  of  the  jury:  "No 
doubt  every  Chinese  woman  who  did  not  pay  Williams 
was  sent  back."  The  Supreme  Court  said:  "The  obser- 
vation made  by  the  prosecuting  attorney  was,  under  the 
circumstances,  highly  improper,  and  not  having  been 
withdrawn,  and  the  objections  to  it  being  overruled  by 
the  Court,  it  tended  to  prejudice  the  right  of  the  accused 
to  a  fair  and  impartial  trial." 

In  Hall  against  the  United  States,  150  U.  S.,  76,  a 
judgment  of  the  trial  Court  was  reversed,  because  the 
District  Attorney  was  permitted  to  make  an  argument, 
against  the  objection  of  the  defendant,  not  based  on  evi- 
dence, which  tended  to  prejudice  the  jury  against  the 
defendant.  See  also  People  vs.  Mull,  167  N.  Y.,  247.  In 
the  case  of  Lowdon  against  the  United  States,  149  Fed., 
677,  this  question  was  raised:.  The  attorneys  for  the  de- 
fendant had  insisted  that  six  men  could  not  return  a  ver- 
dict, nor  could  eleven;  that  it  required  twelve.  The  Dis- 
trict Attorney,  in  answering  that  argument,  said  in  sub- 
stance that  it  was  true  that  six  could  not  return  a  ver- 
dict, nor  could  eleven,  and,  that,  as  matter  of  fact,  it  did 
take  twelve;  but  that  he  would  hate  to  be  the  obstinate 
juror,  for  fear  when  he  returned  home,  his  friends  and 
neighbors,  who  possibly  were  not  versed  and  familiar 
with  the  various  technicalities  and  intricacies  of  the  law 
might  conclude  that  the  jingle  of  the  broken  banker's 
unlawful  and  illy  gotten  gold  in  his  pocket  had  influenced 
his  action.  The  court,  in  that  case,  held  that  the  argu- 
ment was  improper,  and  said:    "We  would  not  embar- 


General  Provisions  Applicable  to  the  Practice.    71 

rass  free  discussion,  so  essential  to  proper  administra- 
tion of  the  law.  We  would  not  regard  many  hasty  but 
exaggerated  expressions  of  attorneys  made  in  the  heat 
of  debate,  which  are  not  expected  to  become  factors  in 
the  formation  of  the  verdict.  We  wish  to  follow  es- 
tablished rules,  and  to  avoid  introducing  another  ele- 
ment of  uncertainty  in  the  trial  of  criminal  cases  by  mak- 
ing a  new  precedent  for  the  reversal  of  judgments.  The 
difficulty  of  drawing  a  line  between  legitimate  and  im- 
proper arguments  admonishes  us  that  the  trial  judge 
often  has  a  delicate  and  difficult  task  imposed  on  him; 
but,  under  the  circumstances  of  this  case,  considering 
the  character  of  argument,  the  refusal  of  the  trial  judge 
to  interfere  at  the  time  the  objection  was  interposed,  or 
to  correct  the  probable  effect  of  the  argument  by  a  sub- 
sequent instruction,  and  because  it  does  not  appear  af- 
firmatively to  us  that  no  injury  was  done  to  the  defend- 
ants, we  are  constrained  to  hold  that  the  judgment  should 
be  reversed  and  a  new  trial  granted.' :  See  also  Allen  vs. 
United  States,  115  Fed.,  p.  4. 

So,  also,  the  District  Attorney  may  not  comment  in 
argument  upon  the  failure  of  the  defendant  to  offer  evi- 
dence of  his  previous  good  character.  McKnight  vs. 
United  States,  97  Fed.,  208;  Bennet  vs.  State,  86  Ga., 
401;  Davis  vs.  State,  138  Ind.,  11;  Fletcher  vs.  State,  49 
Ind.,  124;  Thompson  vs.  State,  92  Ga.,  448;  the  People 
vs.  Evans,  72  Mich.,  367;  Lowdon  vs.  U.  S.,  149  F.,  677. 

Neither  can  the  defendant,  by  questions,  be  compelled 
to  disclose  evidence  against  himself,  as,  for  instance,  he 
cannot  be  asked  to  produce  the  original,  else  a  certified 
copy  will  be  permitted.  McKnight  vs.  United  States,  115 
Fed.,  972. 

See  U.  S.  vs.  Snyder,  14  F.,  554,  where  District  At- 
torney comments  on  failure  of  defendant  to  testify  in 
his  own  behalf.  See  also  Dimmick  vs.  U.  S.,  121  Fed., 
638.  Also  case  of  Latham  et  al.  vs.  U.  S.,  Circuit  Court 
Appeals  5th  Circuit,  226  Fed.  p.  000,  decided  in  October, 
1915,  reversed  because  District  Attorney  said,  "if  it  had 
not  been  that  a  train  was  three  hours  late  he  would  have 
produced  another  witness." 


72  Federal  Criminal  Law  Procedure. 

§  22a.  Procedure  When  Improper  Argument  or  Re- 
marks are  Made. — When  the  prosecuting  officer  has  in- 
dulged in  argument  not  supported  by  the  record  or  makes 
use  of  unfair  and  prejudicial  statements  either  in  argu- 
ment or  in  the  examination  of  witnesses,  or  at  any  other 
time  in  the  presence  of  the  jury,  the  defense  should  at 
once  object,  and  thereupon  it  becomes  the  duty  of  the 
court  to  instruct  the  jury  not  to  consider  what  the  pros- 
ecuting officer  has  said,  and  the  remark  or  argument  or 
statement  should  also  be  withdrawn  by  the  prosecuting 
officer.  If  this  course  is  not  taken,  the  defense  should 
except  and  preserve  such  exception  by  a  proper  bill.  It 
is  also  a  safe  practice  to  request  a  special  charge  govern- 
ing the  occurrence  and  if  such  special  charge  is  not  given, 
to  reserve  a  bill  to  that  action  of  the  court.  Higgins  vs. 
U.  S.,  185;  Fed.,  710;  Donaldson  vs.  U.  S.,  208;  Fed.,  4; 
Stewart  vs.  U.  S.,  211;. Fed.,  41;  Fish  vs.  U.  S.,  215  Fed., 
545.  Ammerman  vs.  U.  S.,  185  Fed.,  1;  Goodwin  vs.  U. 
S.,  200  Fed.,  123;  Eogers  vs.  U.  S.,  214  Fed.,  981;  Car- 
lisle vs.  U.  S.,  194;  Fed.,  827.  In  the  above  cases  will 
be  found  a  number  of  illustrations  as  to  what  the  court 
will  and  will  not  permit. 

In  Carlisle  vs.  U.  S.,  194  Fed.,  827,  the  court  said  that 
the  rule  that  a  district  attorney  shall  not  refer  in  his 
argument  to  defendant's  failure  to  testify  in  his  own 
behalf  does  not  prevent  argument  amounting  only  to  a 
claim  that  the  government  had  made  out  a  prima  facie 
case,  which  had  not  been  contradicted. 

In  Ammerman  vs.  U.  S.,  185  Fed.,  1,  the  court  went 
further  than  I  have  ever  known  it  to  go  when  it  held 
that  where  the  district  attorney  in  his  opening  argu- 
ment said  that  "Gilliam's  testimony  must  be  taken  as 
true  because  the  defendant  had  not  gone  on  the  witness 
stand  and  denied  it."  And  the  court  immediately,  on 
its  own  motion,  stopped  the  attorney,  and  defendant's 
counsel  at  the  same  time  excepted,  and  the  court  then 
said  to  the  jury  that  the  remarks  of  the  assistant  dis- 
trict attorney  were  improper;  that  he  had  no  right  to 
make  them;  and  the  jury  should  not  draw  any  unfavor- 
able   conclusion    or   inference    against    defendant    from 


General  Provisions  Applicable  to  the  Practice.    73 

such  remarks;  that  the  law  prohibited  the  assistant  dis- 
trict attorney  from  commenting  as  he  had  upon  the  de- 
fendant's conduct  in  not  contradicting  Gilliam;  that  it 
was  a  gross  impropriety  for  him  to  have  done  so;  and 
that  his  statement  should  be  entirely  disregarded,  and 
later  on  the  trial  Judge  told  the  jury  in  other  and  differ- 
ent words  that  they  must  entirely  disregard  the  improper 
comment.  Upon  such  a  state  of  facts  the  Court  of  Ap- 
peals held  that  there  was  no  reversible  error.  This 
holding  is  in  direct  contravention  to  the  holdings  of  the 
courts  of  many  of  the  states  and  seems  to  be  in  conflict 
with  many  of  the  decisions  of  the  Federal  Courts.  The 
jury's  attention  having  been  drawn  to  the  fact  that  the 
defendant  had  not  testified,  no  possible  charge  or  cau- 
tion by  the  Judge  could  entirely  eradicate  the  harm  done. 
The  defendant  is  presumed  to  be  innocent  until  his  guilt 
is  established  by  competent  evidence  and  beyond  a  rea- 
sonable doubt,  and  his  failure  to  offer  any  testimony 
whatsoever  must  not  be  taken  as  any  indication  of  his 
guilt,  nor  shall  such  failure  be  referred  to  either  by  the 
prosecution  or  by  the  court  lest  a  fair  trial  as  defined  by 
the  law  be  denied.  The  Court  of  Appeals,  in  the  case 
under  consideration,  concluded  by  saying,  "We  cannot 
refrain,  however,  from  saying  that  counsel  in  their  zeal 
to  enforce  obedience  of  the  law  on  the  part  of  others 
should  not  themselves  grossly  violate  it,"  which  ap- 
pendage to  an  affirming  opinion  seems  to  warrant  us  in 
saying  that  the  court  was  extremely  doubtful  of  the  cor- 
rectness of  its  position.  It  may  be  added  here  that  the 
court  does  not  cite  a  single  case  in  support  of  its  position 
when,  as  we  know,  the  books  are  full  of  cases  opposing 
such  a  position.  The  Constitution  provides  that  not  one 
shall  be  made  to  testify  against  himself.  When  the 
prosecution  is  permitted  to  remark  that  the  defendant 
has  not  testified,  this  Constitutional  guarantee  is  swept 
away,  as  have  the  courts  so  frequently  held. 

In  Goodwin  vs.  U.  S.,  200  Fed.,  121,  the  United  States 
attorney  used  this  language,  "Do  not  let  it  be  said,  gentle- 
men, that  you  as  jurors  did  not  have  the  nerve  to  attach 
the  death  penalty,  because,  gentlemen  of  the  jury,  this 


74  Federal  Criminal  Law  Procedure. 

case,  if  there  ever  was  a  case,  is  one  in  which  it  is  mer- 
ited.';  The  report  does  not  show  just  what  steps  the 
defendant  took  to  shield  himself  from  this  improper  at- 
tack, but  the  court  said,  "Admonitions  of  this  character 
to  a  jury  by  a  prosecuting  officer  of  the  government  can- 
not be  approved.  They  should  not  be  resorted  to  by  an 
officer  in  the  performance  of  his  duty  as  a  prosecutor. 
On  the  other  hand  we  cannot  say  that  such  deviation 
from  the  path  of  strict  propriety  was  such  an  error  in 
this  case  as  would  justify  its  reversal  and  a  new  trial. 
After  carefully  reading  the  evidence  we  are  of  the  opin- 
ion that  it  had  no  influence  upon  the  verdict  of  the  jury." 

In  the  case  of  Fish  vs.  United  States,  215  Fed.,  544, 
the  conviction  was  reversed  because  the  district  attorney, 
in  his  argument  to  the  jury,  reflected  upon  the  defendant 's 
character  which  was  not  put  in  issue,  and  going  beyond 
any  evidence  in  the  case,  and  which  were  not  withdrawn 
or  corrected  when  called  to  the  attention  of  the  court 
and  counsel.  The  opinion  was  rendered  by  Judge  Bing- 
ham of  the  Circuit  Court  of  Appeals  for  the  First  Cir- 
cuit, and  among  other  things,  he  said,  "What  the  dis- 
trict attorney  said  *  *  was  an  appeal  to  the  pas- 
sion and  prejudice  of  the  jury.  Immediately  upon  the 
statement  being  made,  counsel  for  the  defendant  objected, 
and  brought  the  matter  to  the  attention  of  the  court 
and  of  counsel  for  the  prosecution.  It  then  became  the 
duty  of  the  district  attorney  to  withdraw  the  statement 
and  ask  the  jury  to  disregard  it;  and  the  court  should 
at  that  time  have  instructed  the  jury  that  the  statement 
was  improper,  and  that  they  should  not  allow  it  to  in- 
fluence their  action.  *  *  The  objectionable  state- 
ment being  allowed  to  stand,  defendant's  counsel  follow- 
ed it  up  with  an  exception.  The  objection  and  excep- 
tion were  seasonably  and  properly  taken.  Odell  Mfg. 
Co.  vs.  Tibbetts,  212;  Fed.,  652."  ' 

In  the  case  of  Stewart  vs.  U.  S.,  211  Fed.,  41,  the  Court 
of  Appeals  for  the  Ninth  Circuit  denounced  as  improper  a 
reference  by  the  district  attorney  to  the  conviction  of  the 
partner  of  the  defendant,  but  refused  to  reverse.  I  as- 
sume that  the  judges  were  so  overwhelmed  with  the  hor- 


General  Provisions  Applicable  to  the  Practice.    75 

ror  of  the  facts  that  they  could  find  no  way  for  the  jury 
to  do  anything  but  convict  and  therefore  found  that 
there  was  no  prejudicial  error,  but  the  fact  remains  that 
the  failure  to  reverse  affords  another  comfort  to  the 
prosecuting  officer  who  is  regardless  of  the  record  or  of 
the  rights  of  the  accused. 

§  22b.  Instances  of  Improper  Remarks  and  of  Rem- 
edies Therefor. It  is  improper  to  refer  to  the  failure 

of  friends  to  appear.  Hall  vs.  U.  S.,  256  Fed.  748.  For 
improper  argument  the  cause  will  be  reversed.  Housiou 
Ice  Company  vs.  Harlan,  212  S.  W.  779.  Improper  to 
call  the  defendant  a  Jew.  Gurinsky  vs.  U.  S.,  259  Fed. 
378.  When  the  jury  is  explicitly  directed  by  the  court 
to  disregard  the  improper  argument  of  the  Districl  At- 
torney, it  is  not  error.    Phelan  vs.  IT.  S.,  249  Fed.  43. 

A  statement  by  counsel  as  to  what  other  juries  have 
done  is  improper.  McKibben  vs.  Phila.,  251  Fed.  577. 
It  is  not  admissible  to  mention  other  offenses.  Paquin 
vs.  U.  S.,  251  Fed.  579.  A  reference  by  a  prosecuting 
attorney  in  his  opening  argument  to  the  crimes,  mur- 
der, for  which  the  defendant  was  serving  a  sentence  at 
the  time  of  the  killing  of  a  prison  guard,  was  unneces- 
sary and  prejudicial.  Manuel  vs.  U.  S.,  254  Fed.  272. 
Argument  of  counsel  for  the  government  in  a  prosecu- 
tion for  offering  to  bribe  a  member  of  a  draft  board,  re- 
ferring to  the  war  with  Germany,  was  held  to  be  an  ap- 
peal to  prejudice  and  reversible  error.  August  vs.  U. 
S.,  257  Fed.  388.  The  District  Attorney  is  a  judicial 
officer  and  cannot  use  language  that  other  advocates 
might  use.    Fitter  vs.  U.  S.  258  Fed.  567. 

The  remarks  of  the  District  Attorney  which  are 
thought  to  be  erroneous  must  be  excepted  to.  Eisenburg 
vs.  U.  S.,  261  Fed.  598. 

The  vocal  emphasis  of  a  judge  cannot  be  complained  of 
on  appeal  where  no  exception  was  reserved  in  the  trial 
court.    Sims  vs.  U.  S.,  268  Fed.  234. 

A  withdrawal  of  the  remarks  and  an  instruction  from 
the  court  to  the  jury  to  disregard,  and  a  caution  to  the 
jury  is  oftentimes  sufficient  to  cure  the  error.  Green 
vs.  U.  S.,  266  Fed.  780;   Gilmore  vs.  U.  S.,  268  Fed.  721; 


76  Federal  Criminal  Law  Procedure. 

Kreuzer  vs.  U.  S.,  254  Fed.  35;  Lowdon  vs.  U.  S.,  149 
Fed.  677;  Hardy  vs.  U.  S.,  256  Fed.  284. 

It  was  prejudicial  error  for  the  prosecuting  attorney 
to  tell  the  jury  that  if  the  defendant  was  acquitted,  or, 
awarded  a  suspended  sentence  that  it  would  be  a  stench 
in  the  nostrils  of  every  citizen  of  Taylor  County.  Brook- 
erson  vs.  State,  225  S.  W.  375. 

For  questions  held  not  improper  see,  Foley  vs.  U.  S., 
241  Fed.  587;  Rose  vs.  U.  S.,  227  Fed.  357.  For  remarks 
held  improper  see,  Sparks  vs.  U.  S.,  241  Fed.  778;  Elmer 
vs.  U.  S.,  260  Fed.  646.  A  cross  examination  may  be 
prejudicial.     Skuy  vs.  U.  S.,  261  Fed.  316. 

An  objection  to  unfair  remarks,  calling  the  attention 
of  the  judge  to  them  when  made,  together  with  an  ex- 
ception to  the  action  of  the  judge,  or  his  lack  of  action, 
on  the  objection,  are  essential  to  review  of  unfair  re- 
marks, or  their  effect.  Chambers  vs.  U.  S.,  237  Fed.  513. 
In  this  case  the  court  held  that  it  was  not  error  for  the 
prosecuting  officer  to  speak  of  those  who  had  dealt  with 
the  defendants  as  victims  when  the  evidence  showed  that 
the  land  was  not  of  the  value  represented  by  the  defend- 
ants. 

A  defendant  having  testified  may  be  re-called  for  proper 
cross-examination.    Ching  vs.  U.  S.,  264  Fed.  639. 

The  failure  of  the  defendant  to  testify  may  be  charged 
on  by  the  court  saying,  that  no  presumptions  shall  arise 
therefrom.  Kreuzer  vs.  U.  S.,  254  Fed.  35;  Robilia  vs. 
U.  S.,  259  Fed.  101. 

The  real  and  correct  rule  in  the  federal  court  is  that 
neither  the  court,  nor  the  counsel  shall  comment  up- 
on the  failure  of  the  accused  to  testify.  Act  Mar.  16, 
1878,  20  Stat.  30;  Stout  vs.  U.  S.,  227  Fed.  799;  see  also 
People  vs.  Watson,  111  N.  E.  243. 

For  further  improper  remarks  of  District  Attorney 
and  references  therefor,  see  Gowling  vs.  U.  S.,  269  Fed. 
215;  Lynch  vs.  State,  193  S.  W.  667. 

The  court  must  stop  and  instruct  the  jury  to  disre- 
gard improper  remarks,  comments,  or,  argument.  Hun- 
ter vs.  U.  S.,  264  Fed.  831. 


General  Provisions  Applicable  to  the  Practice.    77 

Under  the  Act  of  February  26,  1919,  error  may  be  no- 
ticed without  exception.    August  vs.  U.  S.,  257  Fed.  388. 

§  23.  District  Attorney  in  Grand  Jury  Room. — Hav- 
ing already  noticed  something  of  the  latitude  permitted 
the  District  Attorney  or  prosecution  in  argument  before 
the  trial  jury,  it  will  not  be  out  of  place  to  call  attention 
to  the  limits  within  which  the  prosecuting  officer  must 
work  in  the  grand-jury  room  in  seeking  an  indictment 
or  presenting  evidence  to  the  grand  jury  upon  which  he 
expects  an  indictment  to  be  returned.  In  United  States 
vs.  Wells,  163  Federal,  313,  Judge  Whitson  reviews,  at 
some  considerable  length,  authorities  along  this  line,  and 
from  that  opinion  may  be  deduced  the  following  rules 
and  limits:  The  District  Attorney  has  no  right  to  par- 
ticipate in,  nor  be  present,  during  the  deliberations  of  a 
grand  jury,  nor  to  express  opinions  on  questions  of  fact, 
or  as  to  the  weight  and  sufficiency  of  the  evidence.  The 
District  Attorney  should  not  comment  upon  and  review 
the  evidence  and  apply  the  law  thereto  for  the  purpose 
of  securing  an  indictment.  He  should  not  express  an 
opinion  that  the  defendants  are  guilty,  and  that  the 
grand  jury  should  return  an  indictment  against  them. 
He  should  not  be  present  while  the  jury  is  balloting  up- 
on the  persons  under  investigation;  and  while  the  mere 
presence  of  the  prosecutor  during  the  taking  of  a  vote, 
through  inadvertence,  and  without  intending  to  influ- 
ence any  action,  is  not  necessarily  fatal  to  a  bill,  yet  where 
the  prosecutor  expresses  his  opinion  and  urges  the  finding 
of  an  indictment,  it  is  clearly  shown  that  the  grand  jury 
must  have  been  influenced  thereby,  and  an  indictment  so 
returned  will  be  quashed. 

§  23a.  Misconduct — How  Raised. — A  plea  of  miscon- 
duct in  the  grand  jury  room  must  set  out  fully  facts 
and  not  conclusions.    U.  S.  vs.  Gradwell,  227  Fed.  243. 

§  24.  Jury.— The  right  of  trial  by  jury  is  the  most 
priceless  boon  enjoyed  by  the  people  under  any  govern- 
ment. Text-book  writers,  newspaper  writers,  politicians, 
and  theorists  may  thunder  as  they  will  against  the  mis- 
carriages of  justice  from  the  jury  box;  the  system  is 
not  only  established  for  all  time,  but  is  as  necessary  as 


78  Federal  Criminal  Law  Procedure. 

a  bill  of  rights.  No  judge,  however  learned,  no  set  of 
judges,  however  impartial  can  approximate  the  justice 
that  is  found  and  dispensed  by  the  layman  juror.  A  mind 
trained  in  the  law,  or  in  any  other  science  or  profession, 
holding  the  utmost  purity  of  thought,  is  still  short  of  an 
ability  to  appreciate  and  weigh  justly  the  motives  that 
actuate  those  who  are  permanently,  or  occasionally,  or 
unfortunately  only  once,  charged  with  crime  or  offense. 
The  very  people  with  whom  the  unfortunate  walked,  and 
the  very  people  who  suffered  or  won  as  the  unfortunate 
suffered  or  won  understand  best  the  power  that  makes  or 
unmakes  an  intent  of  the  human  heart.  That  the  Fed- 
eral judge  is  permitted  to  give  expression  to  his  opinion 
to  the  jury  is  no  argument  for  the  abolition  of  the  jury. 
The  jury  is  strong,  because  it  has  twelve  men  on  it,  and, 
therefore,  twelve  sets  of  different  opinions,  and  the  ad- 
dition of  a  judge's  opinion,  coupled  with  the  statement 
that  such  opinion  is  not  to  influence  or  bind  any  member 
of  the  jury,  but  strengthens  the  desire  upon  the  part  of 
the  individual  jurors  to  think  for  themselves,  and  thus 
bring  to  bear  the  best  thought  for  the  determination  of 
the  human  problem  upon  which  they  sit.  Not  the  least 
part  of  the  gloriousness  of  American  jurisprudence  and 
court  history  is  due  to  the  fact  that  the  American  court, 
appellate  or  supreme,  views  with  sacredness  and  honor 
the  verdict  of  the  jury,  and  only  for  well-known  reasons 
will  there  be  a  disturbance  of  the  same.  The  latitude 
given  the  Federal  judge  in  the  matter  of  his  charge  is  to 
be  entered  with  great  care.  The  cream  of  the  decisions 
seems  to  indicate  that  a  judge  should  never  permit  the 
jury  to  know  just  what  he  thinks  individually  of  the  guilt 
or  innocence  of  the  party  on  trial,  but  that  he  may  indi- 
cate, by  instructions  or  otherwise,  his  opinion  upon  a  par- 
ticular piece  of  evidence,  so  that  the  truth  or  falsity  of 
that  particular  testimony  may  be  determined  with  as 
much  ease  as  possible  by  the  jury,  it  being  the  object  of 
a  Court  to  ascertain  the  truth,  and  to  seek  every  light 
possible  that  will  assist  in  finding  just  where  the  truth  in 
fact  does  lie.  The  Constitution  of  the  United  States  pro- 
vides for  trials  by  jury,  as  do  also  the  Amendments, 


General  Provisions  Applicable  to  the  Practice.    79 

which  have  been  denominated  by  the  Supreme  Court  and 
by  great  thinkers  as  the  bill  of  rights  of  the  American 
people.  Congress  has  provided,  in  the  Revised  Statutes, 
for  jury  trials  in  both  the  Circuit  and  District  Courts  of 
the  United  States,  and  has  authorized  the  waiving  of  a 
jury  in  the  trial  of  civil  cases  in  the  Circuit  Court,  but 
has  not  authorized  the  waiving  of  a  jury  in  the  trial  of 
civil  cases  in  the  District  Court.  United  States  vs.  St. 
Louis  Railway  Company,  169  Fed.,  73;  Low  vs.  United 
States,  169  Fed.,  86. 

It  is  quite  certain  that  a  jury  cannot  be  waived  by  one 
who  is  charged  with  a  felony,  and  it  seems  that  the  great 
weight  of  authority  is  against  the  permission  of  a  waiver 
of  a  trial  by  twelve  jurors  when  the  crime  is  infamous  or 
a  high  misdemeanor.  In  Dickinson  vs.  United  States, 
159  Federal,  page  801,  the  Circuit  Court  of  Appeals  for 
the  First  Circuit  speaking  through  Judge  Putnam,  re- 
views the  American  authorities  with  reference  to  the 
waiver  of  one  on  trial  of  his  right  to  be  tried  by  a  jury 
of  twelve,  when  one  of  the  originally  selected  twelve  be- 
comes ill  or  from  other  cause  must  be  excused.  In  that 
particular  case,  the  juror  who  became  ill  was  excused  by 
consent,  which  consent  was  in  writing  of  both  the  de- 
fendant and  his  counsel.  The  case  being  tried  was  one 
denominated  by  the  Federal  statutes  as  a  misdemeanor, 
which,  however,  under  the  new  Code,  is  infamous,  be- 
cause the  punishment  was  penitentiary.  In  that  case,  the 
majority  of  the  Court  holds  that  the  second  Section  of 
Article  III.  of  the  Constitution  demands  a  trial  by  jury, 
and  that  Thompson  vs.  Utah,  170  U.  S.,  343,  has  au- 
thoritatively determined  that  a  jury  for  a  criminal  cause 
is  to  consist  of  twelve  men,  and  that  the  Amendments  to 
the  Constitution  relating  to  jury  trial  do  not  in  any 
measure  explain  or  abrogate  or  lighten  the  second  Sec- 
tion of  the  original  Article  III.,  and  that  in  the  trial  of 
criminal  cases,  not  only  the  defendant  is  interested  in 
the  maintenance  of  Constitutional  guarantees,  but  that 
the  people  themselves  are  interested  and  concerned. 

It  is  true  that  District  Judge  Aldrich,  in  the  foregoing 
opinion,  dissents,  and  in  a  well-reasoned  and  authority- 


80  Federal  Criminal  Law  Procedure. 

supported  paper;  but  one  cannot  well  escape  the  force  of 
the  suggestion  that  if  a  defendant  may  waive  one  and  be 
tried  by  eleven,  why  could  he  not  waive  eleven  and  be 
tried  by  one.  The  safe  rule,  therefore,  for  all  District 
Attorneys,  is  ot  see  that  there  is  a  full  panel,  and  if  sick- 
ness or  other  unavoidable  interference  causes  the  judge 
to  excuse  a  member  of  a  jury,  that  the  trial  then  be  dis- 
continued and  begun  all  over  again  before  the  regulation 
number.  I  have  no  doubt  that  a  defendant  and  his  coun- 
sel may  consent  in  writing  and  bind  themselves  in  writing 
as  strongly  as  a  document  can  be  worded,  and  yet,  in  the 
event  of  conviction,  successfully  raise  the  point  by  way 
of  motion  in  arrest  of  judgment,  and  cause  a  reversal  of 
the  case.    Dickinson  vs.  United  States,  159  Fed.,  809. 

The  case  of  Schick  vs.  United  States,  195  U.  S.,  65,  and 
the  case  of  Callan  vs.  Wilson,  in  127  U.  S.,  549,  are  dis- 
cussed and  differentiated  in  the  Dickinson  case,  cited 
supra;  and  while  the  Schick  and  the  Callan  cases  are 
relied  upon  as  authority  by  District  Judge  Aldrich  in  his 
dissent,  the  majority  opinion  seems  better  founded,  and 
I  would  counsel  the  following  of  the  Dickinson  case  until 
the  same  is  expressly  overruled  by  higher  authority.  See 
also  4  Fed.  Statutes,  p.  391. 

The  Dickinson  case  went  to  the  Supreme  Court  but  cer- 
tiorari was  dismissed  without  acting  on  the  question  in- 
volved. 213,  U.  S.,  92.  A  panel  of  jurors  must  be  drawn 
by  those  authorized  by  section  276  Judicial  Code  and  no 
one  else,  otherwise  a  challenge  to  the  panel  will  be  sus- 
tained.   U.  S.  vs.  Murphy,  224  Fed.  554. 

§  24a.  Comments  of  the  Court. — Judge  McDowell,  in 
U.  S.  vs.  Foster,  183,  Fed.,  626,  in  taking  issue  with  the 
court  in  Garst  vs.  U.  S.,  180,  Fed.,  339,  defined  the  right 
of  the  trial  judge  to  state  his  opinion  on  the  facts  to  a 
jury  in  a  criminal  or  civil  case,  provided  he  explained  to 
the  jury  at  the  same  time  that  such  opinion  has  no  bind- 
ing effect.  It  is  difficult  indeed  to  understand  how  a  court 
could  express  itself  with  reference  to  a  particular  fact, 
the  existence,  force  and  effect  of  which  is  paramountly 
for  the  determination  of  the  jury,  under  our  system,  with- 
out influencing  or  affecting  the  jury. 


Genebal  Peovisions  Applicable  to  the  Practice.    81 

In  Adler  vs.  U.  S.,  182  Federal,  464,  the  appellate  court 
held  that  the  trial  court  could  not  cross  examine  witness- 
es in  a  way  that  would  communicate  to  the  jury  his  opin- 
ion of  the  defendant's  guilt,  and  in  Sandals  vs.  U.  S.,  213, 
Federal,  569,  the  appellate  court  held  that  certain  obser- 
vations by  the  trial  court  could  not  be  removed  by  a  gen- 
eral charge  that  the  jury  was  the  sole  judge  of  the  credi- 
bility of  the  witnesses.  See  also  Foster  vs.  U.  S.,  188 
Federal,  305,  as  to  the  care  to  be  exercised  by  a  court  in 
the  expression  of  opinion.  No  one  doubts,  of  course,  the 
power  of  the  court  to  express  an  opinion.  See  collated 
authorities  in  Young  vs.  Corrigan,  208  Federal,  431,  nor 
must  the  court  be  a  mere  presiding  officer,  for  his  func- 
tion is  to  ascertain  the  truth  and  speed  the  progress"!)? 
te^ialTKittenbach  vs.  XL  S.,  202  Federal,  379,  but 
there  should  be  as  little  entrenchment  as  possible  upon 
the  province  and  field  of  the  jury.  The  right  to  a  jury 
trial  is  priceless  and  in  this  age  of  enlightenment  a  jury 
is  entirely  capable  of  finding  the  light  without  the  aid  of 
judicial  observation,  which  might  lead  the  jury  to  think 
the  way  the  court  leads  rather  than  to  incur  the  displeas- 
ed mind  of  the  court.  It  is  not  that  the  jury  fears  pun- 
ishment at  the  hands  of  the  court,  but  the  jury  looks  up 
to  the  court  and  becomes,  as  it  were,  worshipers  at  the 
shrine  of  the  correctness  of  the  Judge's  opinions  and  in 
their  newness  to  court  atmosphere,  they  tremble  lest  their 
judgment  as  to  the  credibility  of  a  witness  or  the  guilt 
of  the  accused  might  be  at  fault,  especially  since  the 
court  has  clearly  indicated  what  he  thinks  about  it.  And 
so  the  opinion  of  one  man  is  substituted  for  the  opinion 
that  should  be  the  product  of  twelve  minds  hard  at  work 
with  all  the  guides  that  experience  has  given  them. 

The  court  may  express  his  opinion  in  his  charge  rela- 
tive to  the  failure  of  the  plaintiff  to  produce  a  certain 
witness,  where  the  jury  was  given  to  understand  that  it 
was  not  bound  by  such  an  opinion.  Young  vs.  Corrigan, 
210  Federal,  442. 

§  24b.     Comments  and  Attitude  of  the  Court. — What 
has  been  heretofore  said  with  reference  to  the  impar- 
tiality of  the  presiding  judge  and  the  concealment  of  his 
6 


82  Federal,  Criminal,  Law  Procedure. 

individual  opinion  as  to  the  guilt  or  innocence  of  the 
defendant,  and  particularly  as  to  his  guilt,  cannot  be  too 
often  repeated.  Now  that  the  country  is  becoming  more 
thickly  settled  and  the  people  are  further  removed  from 
the  birth  of  their  government  and,  therefore,  less  in  love 
with  it,  every  enforcer  of  the  law  must  stand  clearly  un- 
baised  and  determined  to  meet  out  exact  justice  by  the 
application  of  the  well-known  constitutional  guarantees 
and  by  the  beaten  paths  of  the  law. 

The  court's  comment  must  be  judicial  and  dispassion- 
ate and  leave  the  jurors  free  to  exercise  their  independ- 
ent judgment.  Shea  vs.  U.  S.,  251  Fed.  445;  Sylvia  vs. 
U.  S.,  264  Fed.  593. 

The  court  should  not  commit  a  witness  for  the  defend- 
ant for  perjury  in  the  presence  of  the  jury.  McNutt  vs. 
U.  S.,  267  Fed.  670. 

The  court  should  not  cross-examine  a  witness  in  such 
a  way  as  to  use  a  prejudicial  hypothetical  case,  before 
the  jury  not  warranted  by  the  evidence  and  tending  to 
mislead  the  jury  and  prejudice  them  against  the  defend- 
ant. McCallum  vs.  U.  S.,  247  Fed.  27.  He  should  not  so 
instruct  the  jury  as  to  limit  the  presumptions  that  really 
belong  to  the  defendant.  McCallum  vs.  U.  S.,  247  Fed. 
27.  Another  evidence  of  improper  questioning  by  the 
court  will  be  found  in  Manuel  vs.  U.  S.,  254  Fed.  272. 

It  is  quite  improper  for  the  court  to  observe  that 
: practically  all  whisky  cases  show  half-pint  bottles," 
on  the  trial  of  a  man  charged  with  a  whiskey  violation. 
Whiting  vs.  U.  S.,  263  Fed.  477.  The  court  may  not,  in 
submitting  a  defense,  criticise  the  doctrine  upon  which 
such  defense  is  based,  and  if  he  does  so  it  is  reversible 
error.    Bergen  vs.  Shaw,  249  Fed.  466. 

The  reviewing  courts  always  permit  the  trial  judge, 
in  a  judicial  and  fair  manner,  to  direct  the  attention  of 
the  jury  toward  the  ascertainment  of  the  truth,  even 
though,  such  truth  may  indicate  the  court's  opinion,  pro- 
vided he  then  certainly  instructs  the  jury  that  they  are 
not  to  be  guided  by  his  opinion  but  are  to  make  up  their 
own  conclusions.  Balcom  vs.  U.  S.,  259  Fed.  779;  Clark 
vs.  U.  S.,  265  Fed.,  104;  Gross  vs.  U.  S.,  265  Fed.  606; 
Little  v.  U.  S.,  276  F.  915. 


i  i- 


Geneeal  Peovisions  Applicable  to  the  Peactice.    83 

The  court  may  instruct  a  verdict  of  guilty  under  cer- 
tain conditions.    Horning  vs.  D.  C,  41  Sup.  Ct.  Kep.  53. 

§  25.  Care  of  Jury. — Text-book  writers,  judges,  and 
statute  makers  cannot  well  formulate  rules  with  reference 
to  the  care  of  juries  that  can  be  invariably  followed.  Un- 
der most  jurisdictions,  jurors  in  the  trial  of  criminal  cases 
are  kept  together  and  not  permitted  to  separate,  being 
under  the  constant  surveillance  of  bailiffs  or  deputies. 
This  care  and  espionage  of  the  jury  is  not  necessarily 
due  to  the  distrust  of  the  jury  itself,  but  is  ofttimes  con- 
sidered as  a  right  belonging  to  the  jury.  When  that 
body  has  returned  its  verdict,  no  one  should  question  its 
sincerity,  honesty,  and  cleanness,  and  every  safeguard 
that  keeps  the  jury  from  unauthorized  and  outside  per- 
sons, thereby  making  improper  advances  impossible  and 
improbable,  lends  weight  and  force  and  purity  to  its 
verdict,  and  thus  tends  to  convice  the  most  common  mind 
of  the  righteousness  of  the  ultimate  conclusion.  It  is 
not  alone  necessary  to  avoid  evil — the  thoughtful  man 
avoids  the  appearance  even  thereof.  Newspapers,  letters, 
conversations  with  outsiders,  telephone  messages,  and 
telegrams  should  all  alike  be  kept  from  the  jury,  or  else 
go  to  the  jury  under  the  surveillance  of  the  Court. 

In  Marrin  vs.  United  States,  167  Federal,  951,  the  Court 
refused  to  set  aside  a  verdict  upon  a  motion  made  by  the 
defendant  to  the  effect  that  newspapers  relating  to  the 
case  had  been  read  by  the  jurors  during  the  trial;  and 
while  the  facts  disclose  that  the  jurors  themselves  testi- 
fied that  they  were  not  influenced  by  the  newspaper  state- 
ments, yet  it  does  seem  that  we  would  have  felt  a  great 
deal  better  had  there  been  no  such  case  reported.  Of 
course,  after  a  juror  has  rendered  his  verdict,  he  is  slow 
to  answer  that  any  part  thereof  was  shaped  or  rendered 
or  assisted  by  anything  that  he  may  have  read  in  a  news- 
paper. It  is  a  safer  plan  to  keep  the  paper  from  the 
jury,  and  if  prejudicial  articles  do  come  into  the  hands  of 
the  jury  and  this  fact  be  ascretained  by  the  Court,  the 
jury  should  be  discharged,  or,  if  the  fact  is  not  known 
until  after  the  verdict,  then  a  new  trial  should  be  granted, 
unless  it  clearly  appears  that  no  prejudice  was  worked  to 


84  Federal  Criminal  Law  Procedure. 

the  defendant.  In  the  case  of  Callahan  vs.  Chicago,  158 
Federal,  988,  the  Court  held  that  he  would  not  permit  the 
jurors  to  testify  to  the  effect  upon  themselves  of  an  at- 
tempt made  to  influence  their  verdict.  They  were  per- 
mitted to  testify  to  any  facts  showing  attempts  of  others 
to  improperly  influence  their  verdict,  but  it  is  for  the 
Court  to  determine  whether  or  not  the  attempts  -shown 
are  of  a  character  that  the  verdict  may  have  been  im- 
properly influenced  thereby. 

§  25a.  Care  of  Jury  Continued. — The  jury  must  be 
kept  together  and  it  is  unsafe  to  make  any  other  rule; 
yet  in  the  case  of  Elder  vs.  U.  S.,  243  Fed.  84,  the  Circuit 
Court  of  Appeals  for  the  Ninth  Circuit  refused  to  re- 
verse the  conviction  on  the  ground  that  a  juror  had  ab- 
sented himself  for  twenty  minutes  during  which  time  he 
had  gone  to  his  office,  there  being  no  circumstances  shown 
to  justify  an  inference  of  possible  injury  to  the  defend- 
ant's rights.  The  decision  seems  to  be  justified  by  the 
case  of  Holt  vs.  U.  S.,  218  U.  S.,  245. 

The  isolation  of  the  jury  and  its  aloofness  and  its  care 
by  trained  and  trustworthy  bailiffs  ought  never  to  be 
abrogated.  It  is  a  protection  to  the  jury  itself.  It  is 
a  protection  to  the  prosecution.  It  is  a  protection  to  the 
defendant. 

A  United  States  marshal  in  charge  of  a  jury  is  not  per- 
mitted to  make  remarks  as  to  the  penalty  that  might  be 
imposed  in  the  event  of  a  conviction.  Chambers  vs.  U. 
S.,  237  Fed.  513. 

A  full  note  on  the  reading  of  papers  by  jurors  will  be 
found  in  46  L.  R.  A.  (N.  S.),  741.  But  the  careful  judge 
keeps  the  papers  away  from  the  jury.  Jurors  are  just 
men  and,  therefore,  are  amenable,  often,  to  intimations 
or  suggestions  that  might,  upon  their  face,  appear  per- 
fectly harmless. 

The  voice  of  the  jury  ought  to  be  heeded  by  all  the 
people,  and,  it  will  be,  when  all  of  the  people  feel  that 
every  possible  extraneous  and  improper  influence  has 
been  kept  away  from  the  body  during  its  deliberations 
and  service. 


General  Provisions  Applicable  to  the  Practice.    85 

§  25aa.  Setting  Aside  Verdict. — See  Section  16b  and 
latter  part  of  Section  16. 

In  the  case  of  Colt  vs.  U.  S.,  190  Federal,  305,  the 
Court  refused  to  set  aside  a  verdict,  even  though  it  Avas 
shown  that  one  of  the  jurors,  while  deliberating  on  the 
case,  had  secured  a  copy  of  the  statute  and  had  read 
that  portion  of  it  which  bore  upon  the  case  he  was  trying. 

§  26.  Evidence  of  Good  Character. — If  there  be  a  dif- 
ference in  the  rule  of  evidence  as  adopted  by  the  various 
appellate  Courts  of  the  different  states,  respecting  the 
admission  of  testimony  as  to  the  good  character  of  the 
defendant,  the  rule  in  the  United  States  Courts,  as  out- 
lined in  the  ease  of  Edgington  vs.  United  States,  164  U. 
S.,  361;  41  Law  Ed.,  467,  is  that  evidence  of  a  defend- 
ant's general  reputation  for  truth  and  veracity  is  ad- 
missible on  a  prosecution,  not  merely  to  give  weight  to 
his  personal  testimony  in  the  case,  but  to  establish  a 
general  character  inconsistent  with  guilt,  whether  he  has 
testified  or  not;  and  a  charge  to  the  jury  that  if  they 
have  hesitancy  as  to  the  defendant's  guilt,  then  they  may 
consider  as  important  the  testimony  as  to  his  good  charac- 
ter, is  erroneous,  as  limiting  the  effect  of  such  testimony 
to  a  doubtful  case.  The  identical  language  of  the  Court 
upon  this  question  is  as  follows: 

"It  is  not  necessary  to  cite  authorities  to  show  that  in  criminal 
prosecutions  the  accused  will  be  allowed  to  call  witnesses  to  show  that 
his  character  was  such  as  would  make  it  unlikely  that  he  would  be 
guilty  of  the  particular  crime  with  which  he  is  charged;  and  as  here 
the  defendant  was  charged  with  a  species  of  crimen  falsi,  the  rejected 

evidence  was  material  and  competent It  is  impossible,  we  think. 

to  read  the  charge  without  perceiving  that  the  leading  thought  in  the 
mind  of  the  learned  judge  was  that  the  evidence  of  good  character 
could  only  be  considered  if  the  rest  of  the  evidence  created  a  doubt 
of  defendant's  guilt.  He  stated  that  such  evidence  'is  of  value  in 
conflicting  cases,'  and  that  if  the  mind  of  the  jury  'hesitates  on  any 
point  as  to  the  guilt  of  the  defendant,  then  you  have  the  right  and 
should  consider  the  testimony  given  as  to  his  good  character.'  What- 
ever may  have  been  said  in  some  of  the  earlier  cases  to  the  effect  that 
evidence  of  the  good  character  of  the  defendant  is  not  to  be  considered 
unless  the  other  evidence  leaves  the  mind  in  doubt,  the  decided  weight 
of  authority  now  is  that  good  character,  when  considered  in  connection 
with  the  other  evidence  in  the  case,  may  generate  a  reasonable  doubt. 
The  circumstances  may  be  such  that  an  established  reputation  for  good 


86  Federal  Criminal  Law  Procedure. 

character,  if  it  is  relevant  to  the  issue,  would  alone  create  a  reason- 
able doubt,  although  without  it,  the  other  evidence  would  be  con- 
vincing." 

§  26a.  Good  Character  Becomes  a  Fact. — In  the  case 
of  Searway  vs.  U.  S.,  184  Federal,  716,  Circuit  Judge 
Hook,  speaking  for  the  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit,  said  that  evidence  of  the  good  charac- 
ter of  the  accused  is  admissible  on  all  criminal  trials 
whether  the  other  evidence  leaves  the  mind  in  doubt  or 
not;  and  when  established,  it  becomes  a  fact  in  the  case, 
to  be  considered  with  all  other  facts  in  determining  the 
final  issue  of  guilt  or  innocence.  But  in  absence  of  evi- 
dence presumption  cannot  be  considered  evidence.  Price 
vs.  U.  S.,  218,  Federal,  149.  Chambliss  vs.  U.  S.,  218 
Federal,  154. 

§  26b.  Charge  on — Refused  When. — A  special  charge 
on  the  presumption  of  good  character,  when  directed  at  a 
particular  fact,  and  when  the  general  charge  of  the  Court 
contains  an  instruction  to  the  jury  that  the  defendant  is 
presumed  to  be  of  good  character,  may  be  refused.  U. 
S.  vs.  Smith,  217  Federal,  839. 

§  26bb.  Charge  on  Good  Character. — The  trial  court 
in  its  charge  on  good  character  should  not  minimize  its 
importance.  In  the  case  of  Perara  vs.  U.  S.,  235  Fed,  515, 
the  Court  of  Appeals  reversed  the  conviction  on  the 
ground  that  the  trial  court  committed  error  when  he, 
after  charging  on  good  character,  stated  that  persons  of 
high  character  frequently  committed  crimes. 

Where  the  court  has  fully  and  clearly  charged  on  good 
character,  he  may  properly  refuse  a  requested  charge  to 
the  effect  that  good  character  itself  may  generate  a  rea- 
sonable doubt  of  guilt.    Le  More  vs.  U.S.,  253  Fed.  887. 

§  26c.  Proof  of  Other  Offense.— In  Bishop's  New 
Criminal  Procedure,  2nd  Ed.,  Vol.  2,  page  961,  it  is  stated 
as  fundamental  that  the  state  cannot  prove  against  a 
defendant  any  crime  not  alleged  either  as  foundation  for 
a  separate  punishment  or  as  aiding  the  proofs  that  he  is 
guilty  of  the  one  charged,  even  though  he  has  put  his 
character  in  issue.  In  support  of  this  doctrine  a  long 
list  of  authorities  is  cited,  which  include  U.  S.  vs.  Mit- 


General,  Provisions  Applicable  to  the  Practice.    87 

chell,  2  Dall.,  348.  The  same  authority,  at  page  963,  main- 
tains that  even  where  offenses  are  of  a  like  sort,  evidence 
of  one  is  not  ordinarily  admissible  in  proof  of  another;  as 
on  a  trial  for  larceny,  to  show  that  the  defendant  has 
committed  other  and  disconnected  larcenies;  or  for  riot, 
that  he  has  engaged  in  other  riots;  or  for  the  murder  of 
a  particular  person,  that  at  another  time  and  place  he 
murdered  or  threatened  another  person;  or  for  burglary 
in  one  county,  that  he  committed  the  like  in  another; 
hence,  a  fortiori  distinct  crimes  of  other  sorts  than  the 
one  on  trial  are  inadmissible.  Of  course  when  a  detail 
of  the  res  gestae  would  include  offenses  other  than  that 
on  trial,  as  that  they  are  linked  together,  or  as  that  the 
transaction  is  a  continuing  one,  such  testimony  is  ad- 
missible. 

The  particular  question  under  discussion  is  treated  at 
some  length  in  Dysar  vs.  U.  S.,  186  Federal,  620,  by  the 
Circuit  Court  of  Appeals  for  the  Fifth  Circuit,  in  which 
case  the  prosecution  was  allowed  to  prove,  over  the  de- 
fendant's objection,  that  the  defendant  had  been  con- 
victed and  had  served  a  penitentiary  sentence  and  that 
the  defendant  had  also  been  indicted  in  a  third  jurisdic- 
tion and  that  he  had  gone  under  an  alias  in  a  fourth 
jurisdiction  and  had  been  in  the  penitentiary  in  other 
jurisdictions.  There  were  two  defendants  on  trial  and 
the  Court  held  that  such  procedure  was  erroneous  as  to 
both  of  the  defendants  and  reversed  the  cause.  In  the 
discussion  the  court  cited  Section  192  of  Wigmore  on 
Evidence  in  the  following  words: 

"This  principle  has  long  been  accepted  in  our  law.  That  the  doing 
of  one  act  is  in  itself  no  evidence  that  the  same  or  a  like  act  was 
again  done  by  the  same  person  has  been  so  often  judically  repeated, 
that  it  is  a  commonplace." 

A  very  exhaustive  discussion  then  follows,  citing  the 
cases  State  vs.  Lapage,  57  N.  H.,  245;  Kansas  vs.  Adams, 
20,  Kansas,  311;  Commonwealth  vs.  Jackson,  132,  Mass., 
16;  State  vs.  Saunders,  14,  Oregon,  300;  Booth  vs.  U.  S., 
139,  Federal  252;  People  vs.  Molineaux,  168,  N.  Y.,  264; 
1st  Wigmore  on  Evidence,  Section  192,  and  the  court 


88  Federal  Criminal  Law  Procedure. 

then  proceeds:  "Of  course  there  are  many  instances  in 
which  evidence  of  the  commission  of  other  offenses  is 
necessarily  admissible.  One  instance,  often  referred  to 
in  the  books,  is  where  the  commission  of  one  offense  is 
a  circumstance  tending  to  show  the  commission  of  the 
offense  for  which  the  defendant  is  on  trial.  The  fact  that 
the  defendant  charged  with  homicide  stole  an  ax  or  a 
gun  with  which  the  killing  was  done;  the  stealing  of  the 
weapon,  though  a  distinct  offense,  would  necessarily  be, 
in  the  very  nature  of  the  case,  competent  evidence  against 
him  on  his  trial  for  homicide.  The  passing  of  other 
counterfeit  money  of  the  same  character  as  that  which 
the  defendant  is  charged  with  passing,  in  the  case  on 
trial,  would  be  admissible  to  show  guilty  knowledge  or 
intent,"  Eegister  vs.  U.  S.,  186  Federal,  624.  Convic- 
tion reversed  in  Talliaferro  vs.  U.  S.,  213  Fed.  p.  25, 
because  evidence  of  defendant's  house  being  an  assigna- 
tion place  was  admitted  when  she  was  on  trial  for  selling 
beer. 

26  d.  Proof  of  Other  Offenses  Continued.— When 
the  defendant  testifies  he  may  be  asked  about  other 
crimes  he  has  committed  for  impeachment  purposes  only. 
MacKnight  vs.  U.  S.,  263  Fed.  832. 

Proof  of  other  offenses  when  connected  with  the  one  be- 
ing investigated  to  show  a  common  and  continued  pur- 
pose is  admissible.  Hall  vs.  U.  S.,  235  Fed.  870;  Mitchell 
vs.  U.  S.,  229  Fed.  358;  Paris  vs.  U.  S.,  260  Fed.  529;  Deg- 
nan  vs.  IT.  S.,  271  Fed.  291;  Sears  vs.  U.  S.,  264  Fed.  257; 
Weathers  vs.  U.  S.,  269  Fed.  254;  Nee  vs.  U.  S.,  267  Fed. 
84. 

Care  must  be  taken  in  this  respect  and  if  this  rule  is 
not  strictly  followed  the  admission  of  such  proof  will  be 
prejudicial  and  reversable  error.  Hall  vs.  U.  S.,  256 
Fed.  748;  Paquin  vs.  U.  S.,  251  Fed.  579;  Shea  vs.  U.  S., 
236  Fed.  97;  Youmans  vs.  U.  S.,  264  Fed.,  425;  McDonald 
vs.  U.  S.,  264  Fed.  734;  Holzmacher  vs.  U.  S.,  266  Fed. 
979. 

§  26  e.  Good  Character  not  Presumed. — Obvious- 
ly the  character  of  a  defendant  is  a  matter  of  fact,  which, 
if  investigated,  might  turn  out  either  way.    It  is  not  es- 


General  Provisions  Applicable  to  the  Practice.    89 

tablished,  as  a  matter  of  law,  that  all  persons  indicted 
are  men  of  good  character.  Green  vs.  U.  S.,  245  U.  S., 
559;  De  Moss  vs.  U.  S.,  250  Fed.  87;  Kirchner  vs.  U.  S., 
255  Fed.  301;   Sylvia  vs.  U.  S.,  264  Fed.  593. 

The  law,  however,  does  not  minimize  the  effect  of  good 
character  when  proven.  It  is  very  highly  regarded.  U. 
S.  vs.  Freedman,  268  Fed.  655. 

Evidence  of,  to  be  considered  in  connection  with  all 
other  evidence.    Rosen  v.  U.  S.,  271  F.  651. 

§  27.  Instructions  of  the  Court. — Section  722  of  the 
Revised  Statutes  of  the  United  States  do  not  in  any 
measure  bind  the  Federal  Judge  in  the  method  or  form 
of  the  instructions  he  delivers  to  the  jury.  The  statutes 
and  decisions  of  the  state  within  which  he  holds  his  Court 
are  not  binding  upon  him  in  the  matter  of  procedure  in 
criminal  cases,  and  he  may  deliver  a  written  or  an  oral 
charge  as  he  sees  fit.  In  re  Strupp,  12  Blatchf.,  509;  U. 
S.  vs.  Egan,  30  Federal,  608.  The  personal  conduct  and 
administration  of  the  judge  in  the  discharge  of  his  sep- 
' irate  functions  is  neither  practice,  pleading,  nor  a  form 
nor  mode  of  procedure  within  the  meaning  of  the  stat- 
ute, and  a  state  statute  regulating  the  manner  in  which 
the  Court  shall  charge  the  jury  is  not  within  this  statute. 
4  Federal  Statute,  567;  Mudd  vs.  Burrows,  91  U.  S.,  441; 
Indianapolis,  etc.,  vs.  Horst,  93  U.  S.,  300;  Grimes  Dry 
Goods  Co.,  vs.  Malcolm,  164  U.  S.,  490;  Lincoln  vs.  Power, 
151  U.  S.,  442;  U.  S.  Mutual  Association  vs.  Barry,  131 
U.  S. 

In  Tennessee  vs.  Davis,  100  U.  S.,  257,  the  Court  held 
with  reference  to  Section  722,  that,  "examined  in  the 
most  favorable  light,  the  provision  is  a  mere  jumble  of 
Federal  Law,  Common  Law,  and  State  Law,  consisting 
of  incongruous  and  irreconcilable  regulations,  which,  in 
legal  effect,  amount  to  no  more  than  a  direction  to  a 
judge  sitting  in  such  a  criminal  trial  to  conduct  the  same 
as  well  as  he  can,  in  view  of  the  three  systems  of  crimi- 
nal jurisprudence,  without  any  suggestion  whatever  as 
to  what  he  shall  do  in  such  an  extraordinary  emergency, 
should  he  meet  a  question  not  regulated  by  any  one  of 
the  three   systems."     At   Common  Law,  it   is   entirely 


90  Federal  Criminal,  Law  Procedure. 

within  the  discretion  of  the  trial  judge  whether  instruc- 
tions to  the  jury  shall  be  in  writing;  and  in  the  absence 
of  statutes  providing  otherwise,  the  whole  charge  may 
be  delivered  orally,  and  the  action  of  the  trial  judge  in 
so  doing  will  not  be  reviewable  on  appeal  or  error.  Smith 
vs.  Crichton,  33  Maryland,  103;  Baer  vs.  Books,  50  Fed- 
eral, 898;  Gulf  Ey.  Co.  vs.  Campbell,  49  Federal,  354. 

The  most  careful  way,  however,  is  in  writing,  and  there 
is  little  doubt  that  any  judge,  upon  proper  request,  would 
gladly  charge  the  jury  in  writing.  If  special  instruc- 
tions be  desired,  they  must  be  requested  in  writing  be- 
fore the  retirement  of  the  jury,  and  the  best  practice  is 
to  give  them  to  the  judge  before  he  delivers  his  charge. 
All  exceptions  to  the  Court's  charge  must  be  in  open 
Court,  and  before  the  jury  retires,  and  no  bill  will  be 
granted,  unless  such  action  is  taken. 

§  27  a.     Instructions  of  the  Court  Continued. 

The  judge  should  not  answer  any  question  or  communi- 
cate with  a  jury,  after  it  has  been  charged,  in  the  absence 
of  the  parties  and  their  attorneys,  if  practicable,  in  a 
criminal  case,  though  under  certain  conditions  he  might 
answer  a  question  propounded  by  a  jury  in  a  civil  case, 
Fillipon  vs.  Albion,  242  Fed.  258.  In  this  case  the  Court 
of  Appeals  concluded  that  the  answer  of  a  trial  judge  to 
a  question  propounded  by  the  jury  after  the  judge  had 
retired  to  his  chamber,  and  not  in  open  court,  or  in  the 
presence  of  the  parties  or  their  counsel,  was  not  ground 
for  reversal,  where  no  harm  had  resulted,  and  the  ques- 
tion and  answer  being  preserved  of  record  and  counsel 
being  promptly  informed  of  what  had  taken  place  and 
given  an  opportunity  to  except  to  the  substance  of  the 
instruction  and  the  manner  of  giving  it. 

When  this  case  reached  the  Supreme  Court,  250  U.  S. 
76;  39  Sup.  Ct.  Rep.  435,  the  affirmance  by  the  Court  of 
Appeals  was  set  aside  and  it  was  definitely  held  that  the 
giving  of  supplementary  instructions  to  the  jury,  after 
retirement,  in  the  absence  of  the  parties  and  without  af- 
fording them  opportunity  to  be  present  or  to  make  time- 
ly objection  to  the  instruction,  is  error,  not  withstanding 


General  Provisions  Applicable  to  the  Practice.    91 

opportunity  afterward  was  given  to  except;  and  that  may 
now  be  accepted  as  the  real  rule. 

See  also  Dodge  vs.  U.  S.  258  Fed.  300,  holding  that  any 
communication  from  the  court  to  the  jury  not  made  in 
open  court  is  improper. 

The  court  has  ample  right  to  give  additional  instruc- 
tions, U.  S.  vs.  Oppenheim,  228  Fed.  220,  but  must  do  so 
in  the  manner  above  suggested. 

In  the  matter  of  instructions  Federal  Courts  in  criminal 
matters  are  not  controlled  by  state  statute,  Bryant  vs.  U. 
S.,  257  Fed.  380,  nor  by  rules  of  procedure,  U.  S.,  vs.  Op- 
penheim, 228  Fed.  220. 

The  judge  of  the  court  should  reflect  the  real  issue,  U. 
S.  vs.  Stilson,  254  Fed.  120,  and  must  not  assume  the  de- 
fendant's guilt,  Erhardt  vs.  U.  S.,  268  Fed.  326. 

§  27b.  Exception  to  Charge  After  Jury  Retired. — In 
Coffin  vs.  U.  S.,  156;  U.  S.,  445,  Supreme  Court  reversed 
upon  exception  to  charge  reserved  after  the  jury  had  re- 
tired. Such  procedure  having  been  by  permission  of  the 
Court  and  prosecuting  officer  that  defendant's  counsel 
might  have  time  to  examine  the  charge  and  make  his  ob- 
jections afterward. 

§  27  c.     Exceptions  to  Charge. 

General  exceptions  to  a  charge  are  not  allowable  but 
must  be  specific  and  point  out  the  errors  complained  of  so 
that  the  court  may  have  an  opportunity  to  correct  if  he 
has  made  error,  in  his  judgment,  and  so  there  may  be  no 
misunderstanding.    Letterman  vs.  U.  S.,  246  Fed.  940. 

Stipulated  matters  are  not  necessarily  thereby  made  a 
part  of  the  record.    Ulmer  vs.  U.  S.,  266  Fed.  176. 

After  a  case  is  in  the  appellate  court  orders  respecting 
the  same  may  not  be  entered  in  the  trial  court.  Ulmer  vs. 
U.  S.,  266  Fed.  176. 

§  28.  Opinion  of  Court. — A  long  line  of  decisions  sup- 
ports beyond  contradiction  the  right  and,  under  some  cir- 
cumstances, even  the  duty  of  the  judge  to  express  his 
opinion  upon  the  testimony,  which  expression,  in  most 
state  jurisdictions  would  be  a  charge  upon  the  weight  of 
the  evidence,  and,  therefore,  reversible  error;  but  it  is 
well  settled  that  the  Federal  judge  has  this  right.     In 


92  Federal  Criminal  Law  Procedure. 

Simmons  vs.  United  States,  142  U.  S.,  148,  the  Court  said: 
''It  is  so  well  settled  by  a  long  series  of  decisions  of  tins 
Court  that  the  judge  presiding  at  a  trial,  civil  or  crimi- 
nal, in  any  Court  of  the  United  States,  is  authorized, 
whenever  he  thinks  it  will  assist  the  jury  in  arriving  at 
a  just  conclusion,  to  express  to  them  his  opinion  upon 
the  questions  of  fact,  which  he  submits  to  their  determi- 
nation, that  it  is  only  necessary  to  refer  to  a  few  cases 
namely,  Vicksburg,  etc.,  vs.  Putnam,  118  U.  S.,  545 
United  States  vs.  Philadelphia  Company,  123  U.  S.,  113 
Lovejoy  vs.  United  States,  228  U.  S.,  171."  These  de- 
cisions have  been  followed  repeatedly.  Sebeck  vs.  Plat- 
tseutsche,  124  Federal  18;  Ching  vs.  United  States.  118 
Federal,  543.  In  the  Ching  case,  the  Court  held  that  it 
was  not  error  for  the  trial  judge  to  express  an  opinion 
as  to  what  the  verdict  should  be,  if  afterward  he  quali- 
fied his  statements,  and  in  Breese  vs.  United  States,  106 
Federal,  686,  it  was  held  that  an  expression  of  the  judge 
that  the  defendant  is  guilty  was  not  error,  he  having 
cautioned  the  jury  that  they  were  the  sole  judges,  and 
that  his  opinion  should  not  govern.  See  also  Doyle  vs. 
Union  Pacific  E.  E.  Co.,  147  U.  S.,  430;  Allis  vs.  United 
States,  155  U.  S.,  123;  Wiborg  vs.  United  States,  163  U. 
S.,  556;  Woodruff  vs.  U.  S.,  58  Federal,  767;  Spur  vs.  U. 
S.,  87  Federal,  708;  Hart  vs.  U.  S.,  84  F.,  799;  Smith  vs. 
U.  S.,  157  F.,  722. 

§  28  a.     Opinion   of  Court   Continued. 

The  court  may  express  his  opinion  if  he  ultimately  and 
clearly  leaves  the  question  to  the  jury.  Griggs  vs.  Na- 
deau,  250  Fed.  783;  the  court  must  not  argue  one  side 
of  a  case,  Oppenheim  vs.  U.  S.,  241  Fed.  625. 

The  court  may  say  he  thinks  the  defendant  is  guilty 
but  he  must  also  say  that  the  jury  will  determine  that 
and  he  cannot  prevent  the  defendant's  attorney  from 
discussing  such  expressed  opinion.  Morse  vs.  U.  S.,  255 
Fed.  681.  The  appellate  court  will  reverse  a  conviction 
if  the  trial  court's  remarks  are  improper.  Shea  vs.  U. 
S.,  236  Fed.  97;  and  the  court  must  not  argue  the  case 
against  the  defendant,  Johnson  vs.  U.  S.,  270  Fed.  168. 
He  should  be  very  careful  in  his  expressions.  Perkins 
vs.  U.  S.,  228  Fed*  410. 


General  Provisions  Applicable  to  the  Practice.    93 

§  28b.  The  Court  is  Not  a  Mere  Presiding  Officer.— 
His  function  is  to  ascertain  truth  and  express  his  views 
and  insure  an  orderly  progress  of  the  trial.  Littenbach 
vs.  U.  S.,  202,  Federal  379,  but  he  must  be  careful  in  the 
expression  of  an  opinion,  Foster  vs.  U.  S.  188,  Federal 
305,  though  he  have  the  power  to  express  an  opinion, 
Young  vs.  Corrigan,  208  Federal  431.  See  also  Sections 
24  and  24a. 

§  29.  Court  Cannot  Comment  on  Lack  of  Evidence. 
— One  well  marked  limitation  is  that  pointed  out  in  Mul- 
len vs.  United  States,  106  Federal,  892,  in  a  decision  by 
the  Circuit  Court  of  Appeals  for  the  Sixth  Circuit,  which 
holds  in  substance  that  where  no  testimony  has  been 
offered  as  to  the  previous  good  character  of  the  accused, 
the  presumption  of  such  good  character  exists  in  favor 
of  the  accused,  of  which,  upon  a  request  to  that  effect, 
a  jury  should  be  instructed,  and  the  Supreme  Court,  in 
Coffin  against  United  States,  156  U.  S.,  432,  having  said 
that  the  presumption  of  innocence  stands  as  evidence  in 
favor  of  the  accused,  as  does  also  the  presumption  of 
good  character  stand  as  evidence.  Such  presumptions 
existing  it  is  the  duty  of  the  Court  to  let  the  jury  know 
of  such  presumptions,  and  it  was,  therefore,  error  for 
the  trial  judge  to  tell  the  jury  that  the  defendants, 
whether  of  good  character  or  bad  character,  were  pre- 
sumed good  character. 

§  30.  Further  Limitations. — In  Hickory  vs.  United 
States,  160  U.  S.,  408,  and  in  Starr  vs.  United  States,  153 
U.  S.,  616,  the  Supreme  Court  said  in  substance  that 
where  there  is  sufficient  evidence  upon  a  given  point  to 
permit  the  point  to  go  to  the  jury,  it  is  the  duty  of  the 
judge  to  submit  it  calmly  and  impartially,  and  if  the  ex- 
pression of  an  opinion  upon  such  evidence  becomes  a 
matter  of  duty,  under  the  circumstances  of  the  particu- 
lar case,  great  care  should  be  exercised  that  such  ex- 
pression should  be  so  given  as  not  to  mislead,  and  es- 
pecially that  it  should  not  be  one-sided,  and  all  deduc- 
tions and  theories  not  warranted  by  the  evidence  should 
be  studiously  avoided.  See  also  Hicks  vs.  United  States, 
150  U.  S.,  442. 


94  Federal  Criminal  Law  Procedure. 

Were  there  testimony,  therefore  in  the  record,  touch- 
ing the  question  of  character,  it  would  not  be  error  for 
the  judge  to  assist  the  jury  by  such  views  as  he  enter- 
tained respecting  character,  its  formation  and  effect, 
provided  he  then  leave  the  jury  free  to  decide  the  dis- 
puted matter  of  fact  for  themselves.  See  also  McKnight 
vs.  United  States,  97  Federal,  210. 

§  31.  Verdict. — A  verdict  in  a  criminal  case  which 
finds  the  defendant  guilty  upon  certain  counts  of  the  in- 
dictments on  which  the  trial  was  had,  not  guilty  upon 
others,  and  which  reports  a  disagreement  as  to  the  re- 
maining counts,  is  entirely  proper,  and  it  is  not  error  to 
receive  such  verdict  and  to  enter  judgment  thereon  as 
to  the  counts  which  were  finally  disposed  of.  Dolan  vs. 
IT.  S.,  133  F.,  440. 

§  31  a.     Eeturn  of  Verdict. 

A  verdict  may  be  returned  to  the  clerk,  by  agreement, 
in  the  absence  of  the  court,  and  out  of  the  session  there- 
of. U.  S.  vs.  Bachman,  246  Fed.  1009;  a  verdict  on 
"both"  counts  might  mean,  under  certain  circumstances, 
' '  all ' '  counts.    U.  S.  vs.  Bachman,  246  Fed.  1009. 

§  32.  Sentence  and  the  Correction  Thereof. — Certain 
sections  of  Chapter  IX.  of  the  1878  statutes,  relate  to  the 
place  and  term  of  sentence.  Each  Federal  district  is  not 
provided  with  a  Federal  prison,  but  the  statutes  of  all  of 
the  states  of  the  Union  provide  for  the  reception  of  Fed- 
eral prisoners  upon  the  payment  terms  therein  pre- 
scribed. Section  5541  permits  the  Court  to  sentence  the 
prisoner,  if  the  term  be  longer  than  a  year,  to  either  a 
jail  or  a  penitentiary.  In  this  connection,  it  must  be 
understood  that  a  sentence  must  be  longer  than  one  year 
before  the  Court  can  direct  that  it  shall  be  served  in  the 
penitentiary.  Haynes  vs.  United  States,  101  Federal, 
817;  in  re  Bonner,  151  U.  S.,  252.  5542  leaves  it  optional 
with  the  Court  in  imposing  sentence  to  hard  labor,  as  to 
whether  it  shall  be  jail  or  penitentiary. 

There  is  no  direct  Federal  statute  exacting  when  con- 
victed prisoners  shall  be  sentenced.  The  authority  for 
the  sentence  of  a  convict,  therefore,  under  the  Federal 
system,  must  be  found  in  the  general  proposition  that 


General  Provisions  Applicable  to  the  Practice.    95 

the  Federal  Courts  are  authorized  to  pronounce  all  de- 
crees and  judgments  necessary.  Specific  penal  statutes, 
with  fixed  terms  of  punishment,  demand,  therefore,  sen- 
tence by  the  Court  upon  the  convicted  person. 

§  32.  a.     Sentence-Correction-Practice. 

A  sentence  to  the  county  jail  without  mentioning  the 
county  is  valid  since  the  Attorney  General  could  change 
the  place  of  imprisonment  anyhow.  Ozello  vs.  U.  S., 
268  Fed.  242. 

A  court  cannot  double  sentence.  Blackman  vs.  U.  S., 
250  Fed.  449. 

It  is  necessary  that  the  defendant  be  present,  other- 
wise, the  sentence  is  not  valid.  Price  vs.  Zerbert,  268 
Fed.  72. 

One  may  be  sentenced  after  the  term  at  which  he  was 
convicted.     Miner  vs.  U.  S.,  244  Fed.  422. 

The  time  of  one's  sentence  begins  to  run  from  the  date 
he  is  received  by  the  warden  of  the  penitentiary,  or  from 
the  time  he  is  sentenced  as  shown  by  the  date  of  such 
judgment.    Ex  parte  Lyman  247  Fed.  611. 

But  the  time  when  a  sentence  of  imprisonment  is  com- 
menced is  properly  no  part  of  the  sentence  and  may  be 
changed  by  the  court  at  a  subsequent  term,  if  for  any 
reason  execution  of  the  sentence  has  been  delayed.  Bern- 
stein vs.  IT.  S.,  254  Fed.  967. 

The  lower  court  has  large  discretion  in  the  matter  of 
sentence  so  far  as  the  magnitude  of  the  punishment  is  con- 
cerned.   Peterson  vs.  U.  S.,  246  Fed.  118. 

The  appellate  court  may  not  change  the  sentence. 

The  power  of  correction  rests  exclusive  and  alone  with 
the  trial  court.  Voege  vs.  U.  S.,  270  Fed.  219;  Hickson  vs. 
U.  S.,  258  Fed.  867;'Rogers  vs.  Desporte,  268  Fed.  308. 

"Hard  labor"  is  not  a  requisite  of  a  sentence  to  the 
United  States  penitentiary  at  Atlanta.  Rogers  vs.  Des- 
porte, 268  Fed.  83. 

A  sentence  which  showed  in  it's  wording  to  have  been 
on  all  of  the  counts  in  the  indictment  when  the  defendant 
had  been  acquitted  on  some  of  the  counts  is  not  invalid  if 
the  sentence  could  have  been  given  on  one  of  the  counts. 
Roberts  vs.  U.  S.,  248  Fed.  873. 


96  Pedeeal  Criminal  Law  Procedure. 

The  Court  of  Appeals  may  reverse  and  order  the  lower 
court  to  correct  a  sentence.    Farley  vs.  U.  S.,  269  Fed.  721. 

§  32b.  Single  Sentence — What  Is. — District  Judge 
Van  Fleet  in  U.  S.  vs.  Thompson,  202,  Federal,  346,  pro- 
nounced a  judgment  in  a  criminal  case  which  designated 
different  and  consecutive  periods  of  imprisonment  of  a 
defendant  on  different  counts  in  the  same  indictment,  a 
single  sentence  for  the  aggregate  period  and  cited  au- 
thorities to  support  his  position,  distinguishing  the  doc- 
trine laid  down  in  re  Mills,  135  U.  S.,  263.  See  Section 
34. 

§  33.  No  Authority  to  Suspend  Sentence. — For  years, 
and  perhaps  now  in  some  of  the  Districts,  judges  have 
suspended  sentence,  when  in  their  opinion  such  action 
was  called  for  by  the  facts  of  the  particular  case.  Such 
practice  is,  beyond  question  it  seems,  the  exercise  of 
pardoning  power,  and  the  usurpation  by  the  judiciary 
of  a  power  especially  inhibited  to  them,  and  belonging 
to  an  entirely  different  branch  of  the  Government.  The 
Judge,  in  administering  the  law,  is  as  surely  bounden 
to  society  that  all  of  its  mandates  shall  be  correctly  ob- 
served, as  he  is  not  to  lay  the  weight  of  his  finger  un- 
justly upon  the  defendant.  In  United  States  vs.  "Wilson, 
46  Federal,  748,  Judge  Beatty  denounced  the  practice, 
and  observed,  in  substance,  that  while  there  was  no 
question  of  the  power  and  authority  of  a  Court  to  tem- 
porarily suspend  its  judgment  for  the  purpose  of  hear- 
ing and  determining  motions  and  other  proceedings 
which  may  occur  after  verdict,  and  which  may  be  properly 
considered  before  judgment,  or  for  any  other  good  rea- 
son, yet  the  suspension  of  a  judgment  upon  the  good  be- 
havior of  the  prisoner,  or  for  any  ofher  reason  that  is 
not  concerned  with  the  case,  is  an  exercise  of  arbitrary 
and  unlawful  power.     He  says: 

"It  operates  as  a  condonation  of  the  offense,  and  an  exercise  of  a 
pardoning  power,  which  was  never  conferred  upon  the  Court." 

§  33a.     No  Authority  to  Suspend  Sentence,  Continued. 

The  practice  of  suspending  sentences  by  trial  judges 

became  so  prevalent  that  the  government  filed  an  origi- 


General  Provisions  Applicable  to  the  Practice.    97 

nal  proceeding  in  the  United  States  Supreme  Court  to 
mandamus  a  district  judge  who  was  engaging  in  such  a 
practice  and  the  Supreme  Court's  decree  in  that  pro- 
ceeding ended  for  all  time  the  practice.  Exparte  U.  S., 
242  U.  S.,  27;  it  is  thought  that  the  execution  of  a  sen- 
tence may  be  temporarily  delayed  for  a  pardon  or  simi- 
lar proceeding.    U.  S.,  vs.  Lynch,  259  Fed.  982. 

Even  when  a  sentence  had  been  suspended,  illegally, 
the  court  may  thereafter  issue  a  mittimus  for  it's  en- 
forcement, after  the  term  has  expired  at  which  it  was 
imposed.     Morgan  vs.  Adams,  226  Fed.  719. 

§  34.  Correction  of  Sentence. — Under  Section  5546 
and  its  Amendment,  as  shown  at  page  111,  First  Vol- 
ume Supplement,  the  Attorney  General  of  the  United 
States  designates  the  particular  Federal  penitentiary  to 
which  prisoners  from  a  given  district  shall  be  sentenced. 
Theae  designations  because  of  various  reasons,  must, 
from  time  to  time,  be  changed.  Most  of  the  Federal 
Statutes  fix  the  maximum  of  the  punishment,  and  leave 
it  discretionary  with  the  Court  to  come  within  such  limits. 
Some  of  the  statutes  carry  hard  labor,  and  some  do  not. 
Because  of  all  these  and  perhaps  other  reasons,  mistakes 
are  sometimes  made  by  the  Court,  and  sentences  that 
are  void  or  invalid  are  imposed.  There  seems  to  be  no 
question  under  the  authorities,  that  the  Court  which 
has  rendered  a  judgment  or  sentence  may,  during  the 
term  of  its  rendition,  and  before  any  part  of  it  has  been 
executed  or  suffered,  revise  and  vacate  it,  or  change, 
correct,  or  amend  it  in  form  or  substance,  or  may  modi- 
fy, diminish,  or  increase  it  within  the  limits  allowed  by 
law,  and  in  fact  may  render  a  new  judgment,  in  accord- 
ance with  its  authority,  duty,  and  discretion.  United 
States  vs.  Harmison,  3  Saw.,  556;  ex  parte  Caset,  18  Fed., 
86;  Bassett  vs.  United  States,  9  Wallace,  38;  ex  parte 
Lange,  18  Wallace,  163;  Eeynolds  vs.  United  States,  98 
U.  S.,  145;  in  re  Bonner,  151  U.  S.,  242;  Williams  vs. 
U.  S.,  168  IT.  S.,  382;  ex  parte  Waterman,  33  Federal  29; 
U.  S.  vs.  Harmon,  68  Federal,  472;  in  re  Groves,  117  Fed- 
eral, 798. 

7 


98  Federal  Criminal  Law  Procedure. 

The  authorities  also  seem  to  be  a  unit  upon  the  proposi- 
tion that  after  the  term  has  passed,  the  Court  has  no 
further  control  over  a  valid  judgment  or  sentence  which 
it  has  rendered,  and  cannot  vacate,  reform,  or  change 
it,  or  pronounce  a  new  sentence.  Ex  parte  Friday,  43 
Federal,  916;  U.  S.  vs.  Malone,  9  Federal,  897;  U.  S.  vs. 
Pile,  130  U.  S.,  280;  U.  S.  vs.  Patterson,  29  Federal,  775. 
Independently  of  some  statutory  provision,  it  is  thor- 
oughly settled  that  the  practice  of  the  Federal  Courts 
with  reference  to  granting  new  trials  in  criminal  cases 
follows  the  Common  Law,  so  that  the  Court  has  no  juris- 
diction over  such  motion  after  the  term  expires  at  which 
the  sentence  was  pronounced.  Chitty's  Criminal  Law, 
651;  Indianapolis  E.  R.  Co.  vs.  Horst,  93  U.  S.,  291;  New- 
comb  vs.  Wood,  97  U.  S.,  581;  Belknap  vs.  U.  S.,  150  U. 
S.,  588;  King-man  vs.  Western  Mfg.  Co.,  170  IT.  S.,  675; 
Capital  Traction  Co.  vs.  Hof,  174  U.  S.,  1.  Where,  how- 
ever, there  is  a  local  statute  of  the  state,  by  which  a  mo- 
tion for  a  new  trial  in  a  criminal  case  is  justified,  even 
though  the  term  be  ended  at  which  the  sentence  and  judg- 
ment was  passed,  it  seems  to  be  an  open  question  as  to 
just  what  course  the  Federal  Courts  would  follow.  In 
Trafton  vs.  IT.  S.,  147  Federal,  513,  the  Circuit  Court  of 
Appeals  for  the  First  Circuit  declined  to  pass  upon  this 
question,  referring  it  back  to  the  District  Court  for  first 
investigation,  without  themselves  indicating  either  for 
or  against  such  practice. 

So,  also,  the  respectable  weight  of  authority  seems  to 
indicate  that  a  sentence  which  is  null  and  void  may  be 
corrected  at  the  same  term  in  which  it  was  entered,  even 
though  the  prisoner  has  been  in  prison  thereunder.  Peo- 
ple vs.  Dane,  81  Mich.,  36;  ex  parte  Gilmore,  71  Cali- 
fornia, 624;  in  re  Bonner,  151  IT.  S.,  242;  in  re  Christian, 
82  Federal,  885. 

While  for  some  time  it  may  have  been  considered 
doubtful  as  to  whether  the  sentencing  Court,  after  the 
term,  could  recall  before  it  the  prisoner,  and  re-sentence, 
for  the  purpose  of  correcting  a  null  and  void  judgment, 
it  seems  now  to  be  determined  upon  the  weight  of  au- 
thority and  sound  public  policy,  that  such  action  may  be 


General  Provisions  Applicable  to  the  Practice.    99 

taken.  At  Common  Law,  it  could  be  done  on  a  writ  of 
error  coram  vobis.  In  recent  times,  it  has  often  been 
done  by  motion.  Bank  of  United  States  vs.  Moss,  6  How- 
ard, 38;  Bronson  vs.  Schulter,  104  U.  S.,  410;  Phillips  vs. 
Negley,  117  U.  S.,  665;  in  re  Wright,  134  U.  S.,  136;  in  re 
Welty,  123  Federal,  126;  ex  parte  Peeke,  144  Federal, 
1020;  U.  S.  vs.  Carpenter,  151  Federal,  216;  Francis  vs. 
U.  S.,  152  Federal,  157.  In  addition  to  these  authorities 
is  the  ranking  authority  of  the  Supreme  Court  of  the 
United  States,  in  in  re  Bonner,  152  Federal,  252  wherein 
the  Court  says: 

"But  in  a  vast  majority  of  cases,  the  extent  and  mode  and  place  of 
punishment  may  be  corrected  by  the  original  court  without  a  new 
trial,  and  the  party  punished  as  he  should  be,  whilst  relieved  from  any 
excess  committed  by  the  Court  of  which  he  complains.  In  such  case, 
the  original  Court  would  only  set  aside  what  it  had  no  authority  to 
do,  and  substitute  directions  required  by  the  law  to  be  taken  upon  the 
conviction  of  the  offender." 

The  above  expression  was  written  in  a  case  where  many 
terms  had  elapsed;  but  the  Supreme  Court  directed  that 
the  prisoner,  who,  upon  his  application  for  an  habeas  cor- 
pus, had  been  released  from  the  penitentiary  custody, 
should  be  transmitted  to  the  original  Court  for  the  steps 
to  be  taken  in  accordance  with  the  excerpt  above.  Bal- 
lew  vs.  U.  S.  160,  U.  S.  195,  affirms  the  Bonner  case  and 
takes  action  in  harmony  therewith. 

§  34a.  Sentence  not  Absolutely  Void;  Resentencing. 
— In  Howard  vs.  Moyer,  206,  Federal,  555,  it  was  held 
that  one  would  not  be  released  on  writ  of  habeas  corpus 
merely  because  the  sentence  was  erroneous.  In  order 
to  secure  such  relief,  the  sentence  must  in  fact  be  a  nul- 
lity.   See  also  Balke  vs.  Moyer,  206,  Federal,  559. 

In  Stevens  vs.  McClaughry,  207  Federal,  18,  Circuit 
Judge  Sanborn  for  the  Court  of  Appeals  for  the  Eighth 
Circuit,  held  that  one  who  is  being  restrained  of  his  lib- 
erty for  many  years  by  virtue  of  the  judgment  of  a  Fed- 
eral Court  which  is  beyond  its  jurisdiction  and  void,  is 
not  barred  from  a  release  therefrom  by  writ  of  habeas 
corpus  by  the  fact  that  he  might  have  secured  such  re- 
lief by  a  writ  of  error  but  failed  to  apply  for  it  until  it 


100  Federal  Criminal  Law  Procedure. 

was  too  late.  An  habeas  corpus  may  be  used  to  liberate 
one  who  is  being  restrained  of  his  liberty  by  virtue  of 
the  judgment  of  the  Federal  Court  beyond  its  jurisdic- 
tion and  therefore  void.  Stevens  vs.  McClaughry,  207. 
Federal,  18. 

Section  761  of  the  Revised  States  requires  a  Federal 
Court  in  an  habeas  corpus  proceeding  to  dispose  of  the 
party  as  law  and  justice  require,  and  where  one  seeks 
this  relief  on  the  ground  that  his  sentence  was  illegal, 
it  is  proper  for  the  Court  on  so  finding  to  direct  his  re- 
turn to  the  Court  by  which  he  was  tried  for  a  correction 
of  the  sentence,  and  this  may  be  done  though  the  term 
at  which  he  was  convicted  has  passed.  Bryant  vs.  U.  S. 
214,  Federal,  51. 

It  is  not  double  jeopardy  to  re-sentence  a  prisoner 
who  had  his  first  sentence  vacated  by  writ  of  error, 
Murphy  vs.  Massachusetts,  177  U.  S.,  155,  nor  to  re-try 
him  on  a  new  indictment  after  a  prior  indictment,  con- 
viction and  sentence  have  been  set  aside  in  a  proceed- 
ing in  error.    Ball  vs.  U.  S.  163,  U.  S.  662. 

The  Government  is  not  authorized  to  move  for  a  modi- 
fication of  judgment  and  sentence  with  respect  to  place 
of  imprisonment  in  the  absence  of  any  of  the  contin- 
gencies covered  by  Section  5546,  which  provides  that  all 
persons  convicted  where  there  may  not  be  a  penitentiary 
or  suitable  jail,  shall  be  confined  in  some  suitable  jail 
or  penitentiary  in  a  convenient  state  or  territory,  to  be 
designated  by  the  Attorney  General,  and  that  place  of 
imprisonment  may  be  changed  when  to  the  Attorney 
General  it  appears  necessary.  U.  S.  vs.  Cane,  221,  Fed- 
eral, 299. 

§  35.  Remission  of  Penalty  on  Forfeited  Recogni- 
zance.— An  application  to  a  Federal  Court  which  has  en- 
tered judgment  on  a  forfeited  recognizance  in  favor  of 
the  United  States,  for  a  remission  of  the  penalty  for 
which  such  judgment  was  rendered  under  Rev.  Stat. 
1020,  which  gives  the  Court  power  to  remit  the  whole 
or  any  part  of  such  penalty,  "when  it  appears  to  the 
Court  that  there  was  no  willful  default  of  the  party," 
is  not  a  motion  to  vacate  the  judgment,  and  may  be  en- 


General  Provisions  Applicable  to  the  Practice.  101 

tertained  after  the  term  at  which  the  judgment  was  en- 
tered.   U.  S.  vs.  Jenkins,  et  al,  176  F.,  672. 

§  35a.  Fine. — The  imposition  of  a  fine  or  penalty  is 
abated  by  the  death  of  the  party  against  whom  the  same 
is  imposed.    Dyar  vs.  TJ.  S.  106,  Federal,  623. 

§  35.  b.     Fine-Reeovery-etc, 

The  imposition  of  a  fine  on  a  void  indictment  may  be 
recovered  even  though,  it  was  imposed  on  a  plea  of 
guilty,  was  held  in  Mossem  vs.  U.  S.,  266  Fed.  18,  but  the 
defendant  must  pursue  his  statutory  remedies  by  suing  in 
the  court  of  claims.  The  imposing  court  has  no  right  to 
order  the  repayment  of  such  a  fine  upon  a  petition  ask- 
ing the  court  to  act  summarily,  U.  S.,  vs.  Mossew,  268 
Fed.  383. 

A  creditor's  bill  may  be  filed  to  collect  a  fine.  Pierce 
vs.  U.  S.,  257  Fed.  514. 

§  36.  Bail  After  Affirmance. — The  affirmance  by  the 
Circuit  Court  of  Appeals  of  a  judgment  of  conviction  in 
a  criminal  case  is  the  end  of  the  proceedings  in  error, 
and  that  court  has  no  power  to  continue  defendant's 
bail,  nor  to  admit  him  to  new  bail  pending  his  applica- 
tion to  the  Supreme  Court  for  a  writ  of  certiorari,  but 
the  Court  may,  for  good  cause  shown,  defer  the  begin- 
ning of  his  sentence  for  a  reasonable  time.  Walsh  vs. 
U.  S.,  177  F.,  208. 

§  36a.  Bail  Matter  of  Discretion  and  Matter  of  Right 
— When. — A  person  charged  with  a  misdemeanor  only,  in 
extradition  proceedings,  is  entitled  to  bail  as  a  matter 
of  absolute  right,  both  under  the  state  and  federal  laws, 
unless  his  enlargement  on  bail  would  be  a  menace  to  a 
community.    Ex  parte  Thaw,  209,  Federal,  954. 

A  Chinese  person  against  whom  an  order  of  deporta- 
tion has  been  entered,  is  not  entitled  to  be  admitted  to 
bail  pending  an  appeal,  as  a  matter  of  right,  but  admis- 
sion to  bail  rests  in  the  discretion  of  the  Court.  U.  S.  vs. 
Fah  Chung,  132,  Federal,  109.  The  opinion  of  Judge 
Dodge  in  re  Jem  Yuen,  188,  Federal,  350,  is  in  direct  con- 
flict with  the  case  above  cited  in  132nd  Federal,  for  Judge 
Dodge  holds  that  the  words  of  the  Act  requiring  depor 


102  Federal  Criminal  Law  Procedure. 

tation  of  Chinese  persons  under  certain  conditions  deny 
the  alien  bail  pending  appeal. 

A  supersedeas  is  not  a  matter  of  right  when  appeal  is 
taken  in  a  criminal  case.  U.  S.  vs.  Gibson,  188,  Federal, 
397. 

§  36b.    Bail-Amount-Manner-Trial  When  Under. 

A  federal  court  has  jurisdiction  to  try  one  who  has 
been  convicted  in  a  state  court  and  is  then  on  bail.  Vane 
vs.  IT.  S.,  254  Fed.  28. 

A  court  cannot  refuse  cash  bail,  nor,  can  bail  be  denied 
because  the  defendant  has  once  absconded.  Rowan  vs. 
Randolph,  268  Fed.  529. 

Pending  a  writ  of  error  proceedings  the  granting  of 
bail  is  discretionary,  with  the  court.  U.  S.,  vs.  St.  John, 
254  Fed.  794. 

The  opinion  of  the  attorney  for  the  defendant  that  the 
defendant  need  not  attend  court  is  not  an  excuse  such 
as  would  set  aside  a  forfeiture,  nor,  will  it  make  opera- 
tive Sec.  1020,  which  authorizes  the  court  to  remit  the 
whole  or  part  of  the  bond.  U.  S.,  vs.  Fabata,  253  Fed. 
586.    See  also  U.  S.  vs.  Jacobson,  257  Fed.  760. 

§  36c.  Voluntary  Giving  of  Bond  no  Defense  to  Sure- 
ties' Liability. — In  the  case  of  U.  S.  vs.  Lamar,  210,  Fed- 
eral, 685,  it  was  determined  that  even  though  the  accused 
voluntarily  gave  bond  for  his  appearance,  such  contract 
was  binding  and  he,  not  having  appeared  a  preliminary 
surrender  and  a  subsequent  habeas  corpus,  were  no  de- 
fense to  the  forfeiture  of  his  bond.  It  may  be  observed 
here  that  the  government  in  most  instances  proceeds 
against  the  principal  and  his  sureties  by  an  action  at 
law,  after  forfeiture,  rather  than  by  the  old  methods  of 
scire  facias  and  statutory  proceedings.  In  other  words 
it  is  a  mere  action  for  debt. 

§  37.  Severance. — Severance  and  separate  trials  were 
not  a  Common  Law  right,  but  were  permitted  at  the  dis- 
cretion of  the  Court,  in  all  grades  of  offenses,  including 
misdemeanor  and  felony.  It  is  generally  presumed  that 
persons  jointly  indicted  are  to  be  tried  jointly,  but  when, 
in  a  particular  instance,  this  would  work  injustice  to  a 
party,  the  Court,  under  the  Common  Law,  will  permit  a 


General,  Provisions  Applicable  to  the  Practice.  103 

servance  and  separate  trials.  Some  of  the  States,  by  stat- 
ute, authorize  and  guarantee  this  as  a  right.  In  the 
Federal  Courts,  however,  •  the  rule  is  the  Common  Law 
rule  stated  above.  The  application  for  severance  may 
come  from  either  the  defendant  or  the  prosecution,  and 
there  are  authorities  which  hold  that  a  request  by  the 
prosecuting  officer  for  a  severance  will  be  granted  as  a 
matter  of  right,  1  Bishop  Crim.  Procedure,  page  649. 

Re-stating  the  Common  Law  rule,  it  is,  that  the  try- 
ing together  of  joint  defendants  promotes  convenience 
and  justice;  and  unless  the  contrary  appears,  the  trial 
will  be  joint.  If,  however,  there  be  antagonistic  de- 
fenses, or  important  evidence  not  adducible  upon  joint 
trial;  or  where  the  husband  and  wife  are  jointly  indicted, 
and  the  testimony  of  the  wife  would  not  be  admissible 
against  the  husband;  or  if  the  testimony  would  be  prej- 
udicial against  one  and  incompetent  against  another; 
or  where  there  be  a  contention  of  one  which  is  not  ad- 
missible against  another — the  Court  may,  in  his  discre- 
tion, grant  separate  trials.  See  also  Lee  Dock  vs.  U.  S. 
224  Fed.,  431. 

In  United  States  vs.  Marchant  and  Colson,  25  U.  S., 
page  479;  6  Law  Ed.,  700,  the  Supreme  Court  of  the  Unit- 
ed States  held,   speaking  through  Justice  Story,  that, 

"Where  two  or  more  persons  are  jointly  charged  in  the  same  indict- 
ment with  a  capital  offense,  they  have  not  a  right  by  law  to  be  tried 
separately,  without  the  consent  of  the  prosecutor;  but  such  separate 
trial  is  a  matter  to  be  allowed  in  the  discretion  of  the  Court." 

See  also  19  Vol.  Enc.  of  Pleading  and  Practice,  page 
521. 

In  Ball  vs.  United  States,  163  U.  S.,  663,  41  Law  Rd., 
300,  the  Supreme  Court  held,  in  a  case  where  two  de- 
fendants moved  that  they  be  tried  separately  from  Ball, 
a  co-defendant,  alleging  as  a  cause  for  such  motion  that 
the  Government  relied  on  his  acts  and  declarations  made 
after  the  killing,  and  not  in  their  presence  or  hearing, 
and  because  he  was  a  material  witness  in  their  behalf, 
that  the  question  whether  defendants  jointly  indicted 
should  be  tried  together  or  separately,  was  a  question 


3  04  Federal  Criminal  Law  Procedure. 

resting  in  the  sound  discretion  of  the  Court  below;  and 
it  not  appearing  that  there  was  any  abuse  of  that  dis- 
cretion in  ordering  the  three  defendants  tried  together, 
or  that  the  Court  did  not  duly  limit  the  effect  of  any  evi- 
dence introduced  which  was  competent  against  one  de- 
fendant and  incompetent  against  others,  Sparf  vs.  U.  S., 
156  U.  S.,  51;  39  Law  Ed.,  343,  such  discretion  would 
not  be  reviewed  on  writ  of  error. 

In  Cochran  against  the  United  States,  147  Federal, 
206,  the  Circuit  Court  of  Appeals  for  the  Eighth  Circuit 
affirms  this  position,  but  holds  that  United  States  Courts 
held  in  territories  which  are  governed  by  local  statutes 
which  give  a  right  of  severance,  that  the  United  States 
Courts,  will,  in  such  jurisdictions,  grant  the  local  right. 

In  Richards  against  the  United  States,  175  Federal, 
page  911,  the  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit  held  that  the  request  of  defendants  charged  in 
the  same  indictment,  for  separate  trials  is  addressed  to 
the  discretion  of  the  Court,  and  its  action  in  refusing 
the  same  will  not  be  reviewed  in  the  absence  of  clear  in- 
dications that  serious  prejudice  resulted  therefrom  to 
one  or  more  of  the  defendants. 

The  granting  of  a  separate  trial  to  numerous  defend- 
ants who  are  indicted  in  the  same  bill  is  a  matter  of  dis- 
cretion and  such  discretion  can  be  reviewed  only  when 
abused.  Schwartzberg  vs.  U.  S.,  241  Fed.  348;  Oppen- 
heim  vs.  U.  S.,  241  Fed.  625. 

§  38.  Habeas  Corpus. — Under  the  Federal  practice, 
the  return  to  a  writ  of  habeas  corpus  must  recite  facts; 
and  when  it  recites  facts,  verity  will  be  imported  there- 
to until  impeached.  Petitions  that  merely  allege  con- 
clusions of  law,  such  as  that  the  respondent  had  a  right 
to  detain  the  petitioners,  are  held  to  be  insufficient,  and 
do  not  controvert  the  allegations  of  illegal  detention  al- 
leged by  the  petitioner.  In  Stretton  vs.  Shaheen,  176 
Federal,  735,  the  Circuit  Court  of  Appeals  for  the  Fifth 
Circuit  held  that  a  return  to  a  writ  of  habeas  corpus  ob- 
tained on  behalf  of  immigrants  upon  petitions  alleging 
their  illegal  detention  by  an  Inspector,  which  alleged  no 
facts,  but  merely  as  a  conclusion  of  law  that  the  re- 


General  Provisions  Applicable  to  the  Practice.  105 

spondent  had  the  right  to  detain  the  petitioners,  were 
insufficient.  In  Streton  vs.  Rudy,  176  Federal,  727,  the 
same  Court  held  that  where  a  return  shows  a  state  of 
facts  under  which  the  petitioner  is  lawfully  held,  that 
if  there  be  no  evidence  controverting  such  facts,  the  pe- 
titioner will  be  remanded  to  the  custody  of  the  officer, 
and  it  is  error  to  release  the  petitioner  under  such  a  state 
of  facts,  and  cites  Japanese  Immigrant  Case,  189  U.  S., 
86,  47  Law  Ed.,  721,  and  Chin  Yow  vs.  U.  S.,  208  U.  S., 
8;  52  Law  Ed.,  369. 

§  38a.  Habeas  Corpus.  A  civil  court  will  release  a 
prisoner  from  a  court-martial  if  the  court-martial  real- 
ly has  no  jurisdiction.  U.  S.  vs.  McDonald,  265  Fed.  754 
and  695. 

A  writ  will  not  run  to  a  state  court  save  and  except 
for  a  deprivation  of  "due  process."  Teregno  vs.  Shat- 
tuck  265  Fed.  797. 

When  an  application  alleges  that  the  prisoner  is  being 
held  by  a  state  court  in  violation  of  the  constitution  or 
of  a  law  or  treaty  of  the  United  States,  or  for  an  act 
done  or  omitted  pursuant  to  a  law  of  the  United  States, 
the  federal  courts,  under  Sec.  751-753  R.  S.  U.  S.,  have 
plenary  jurisdiction  to  inquire  into  the  cause  of  such 
confinement  by  means  of  habeas  corpus  and  to  discharge 
the  petitioner.  Castle  vs.  Lewis,  254  Fed.  917,  and  there 
is  the  presumption  of  law  that  the  finding  of  the  trial 
court  in  habeas  corpus  proceedings,  who  hears  and  sees 
the  witnesses,  is  correct.    Castle  vs.  Lewis  254  Fed.  918. 

When  one  is  held  under  a  warrant  for  extradition  to 
another  state,  and  institutes  habeas  corpus  proceedings 
in  a  state  court  in  which  he  raises,  or  could  have  raised 
questions  involving  his  rights  under  United  States  laws 
and  constitution,  he  should  prosecute  a  writ  of  error 
to  review  the  decision  of  the  highest  court  in  the  state, 
remanding  him  to  custody,  before  invoking  the  jurisdic- 
tion of  the  federal  courts  on  new  proceedings  for  habeas 
corpus.    Ex  parte  Graves,  269  Fed.  461. 

One  who  has  been  convicted  in  a  state  court  which 
had  jurisdiction  over  the  offense,  the  place  where  it  was 
committed  and  the  prisoner  cannot  have  relief  on  habeas 


106  Federal  Criminal  Law  Procedure. 

corpus  from  a  federal  court  and  such  proceedings  can- 
not be  employed  as  a  substitute  for  a  writ  of  error.  A 
criminal  prosecution  in  a  state  court,  based  on  a  law 
not  repugnant  to  the  federal  constitution  and  conducted 
according  to  the  settled  course  of  proceedings  under  the 
law  of  the  state,  constitutes  "due  process  of  law"  in 
the  constitutional  sense,  so  long  as  it  includes  notice  and 
a  hearing  and  an  opportunity  to  be  heard  before  a  court 
of  competent  jurisdiction  according  to  established  modes 
of  procedure.    Filer  vs.  Steele,  228  Fed.  242. 

It  is  manifestly  difficult,  and  almost  impossible,  to 
claim  that  a  prisoner  has  been  deprived  of  due  process 
of  law,  until  the  conclusion  of  the  course  of  justice  in 
the  state  courts,  as  the  prohibition  of  the  Fourteenth 
Amendment  is  addressed  to  the  state  itself,  and  if  a  vio- 
lation be  threatened  by  one  agency  of  the  state,  but  pre- 
vented by  another  agency  of  higher  authority,  there  is 
no  violation  by  the  state.    Filer  vs.  Stelle,  228  Fed.  242. 

So  also  the  action  of  immigration  officials,  in  ordering 
the  deportation  of  aliens  is  reviewable  by  the  courts  only 
so  far  as  to  determine  whether  they  acted  under  the 
scope  of  their  authority  and  the  fairness  of  their  pro- 
ceedings and  a  habeas  corpus  proceedings  cannot  be 
made  to  perform  the  function  of  a  writ  of  error.  Sibray 
vs.  U.  S.  227  Fed.  1. 

§  38b.  Habeas  Corpus  not  to  be  Used  on  Writ  of  Er- 
ror.— Federal  Courts  will  not  inquire  into  the  validity  of 
an  indictment  on  removal  by  the  habeas  corpus  route. 
Henry  vs.  Henkel,  IT.  S.  Sup.  Ct.,  Oct.  Term,  1914.  Glas- 
gow vs.  Moyer,  225  U.  S.,  420.  In  re  Gregory,  219  U.  S., 
210.  Nor  can  the  writ  be  made  to  perform  the  office  of 
a  writ  of  error.  Harlan  vs.  McGouer,  218  U.  S.,  44. 
Frank  vs.  Mangum,  U.  S.  Sup.  Ct.,  Oct.  Term,  1914.  The 
office  of  the  writ  of  habeas  corpus  is  confined  to  inquiry 
as  to  the  cause  of  confinement,  ex  parte  Jim  Hong,  211 
Federal,  73.  It  is  a  settled  rule  of  the  Federal  Supreme 
Court  that  a  writ  of  habeas  corpus  will  not  ordinarily  be 
issued  to  review  the  decisions  of  courts  of  competent  ju- 
risdiction made  within  the  limits  of  their  jurisdiction, 
oven  though  such  decisions  may  be  erroneous,  and  a  de- 


Genebal  Peovisions  Applicable  to  the  Peactice.  107 

f endant  convicted  of  a  crime  by  a  state  court  of  competent 
jurisdiction,  which  conviction  has  been  affirmed  by  the  Su- 
preme Court  of  the  State,  will  not  be  released  from  im- 
prisonment thereunder  by  a  Federal  Court  on  a  writ  of 
habeas  corpus,  on  the  ground  that  he  is  deprived  of  his 
liberty  without  due  process  of  law,  because  of  the  over- 
ruling of  a  plea  of  former  acquittal;  his  remedy  being 
by  a  writ  of  error  from  the  Supreme  Court  *  of  the 
United  States,  if  he  claimed  the  right  under  the  Con- 
stitution in  the  State  Courts.  Ex  parte  Blodgett,  192, 
Federal  707.  Frank  vs.  Mangum,  U.  S.  Sup.  Ct.,  Oct. 
Term,  1915.  Nor  will  extradition  on  valid  indictment 
be  defeated  by.  Drew  vs.  Thaw,  U.  S.  Sup.  Ct.,  Oct. 
Term,  1914. 

§  39.  Immunity. — Since  the  passage  of  the  Federal 
Sherman  Anti-Trust  and  Interstate  Commerce  Act,  so- 
called,  the  question  has  arisen  whether  the  immunity 
from  prosecution  therein  guaranteed  means  a  shield  from 
any  prosecution,  or  a  protection  against  successful  prose- 
cution. In  the  case  of  Heike  vs.  United  States,  decided 
May  2,  1910,  the  Court  passed  upon  this  question,  and 
approved  Brown  vs.  Walker,  in  161  U.  S.,  591,  in  which 
the  Constitutionality  of  the  Immunity  Statute  was  sus- 
tained, and  said  in  substance  that  a  shield  against  suc- 
cessful prosecution,  available  to  the  accused  as  a  defense, 
and  not  immunity  from  the  prosecution  itself,  is  what  was 
secured  by  the  Act  of  February  25,  1903,  as  amended  by 
the  Act  of  June  30,  1906,  providing  that  no  person  shall 
be  prosecuted  or  subjected  to  any  penalty  or  forfeiture 
for,  or  on  account  of,  any  prosecution,  matter,  or  thing, 
concerning  which  he  may  testify  or  produce  evidence  in 
any  proceedings,  suit,  or  prosecution  under  the  said  Acts. 

The  facts  of  the  Heike  case  were  that  Heike  was  in- 
dicted with  others  for  alleged  violations  of  the  Customs 
laws  of  the  United  States,  in  connection  with  the  fraudu- 
lent importation  of  sugar,  and  also  for  conspiracy  under 
Section  5440  of  the  Revised  Statutes  of  the  United  States, 
to  defraud  the  United  States  of  its  revenues.  Heike  ap- 
peared and  filed  a  special  plea  in  bar,  claiming  immunity 
from  prosecution  under  the  aforementioned  Act.     The 


108  Federal  Criminal,  Law  Procedure. 

plea  set  up,  in  substance,  that  Heike  had  been  called 
upon  to  testify  before  the  grand  jury,  in  matters  con- 
cerning the  prosecution  against  him,  and  had  thereby  be- 
come immune  from  prosecution  under  the  law.  The  Gov- 
ernment filed  a  replication,  and  the  issues  thus  raised 
were  brought  to  trial,  the  result  of  which  was  a  verdict 
for  the  Government  upon  the  issue;  and  thereafter  Heike 
asked  to  be  permitted  to  plead  over,  and  he  then  plead 
not  guilty.  The  Court  then  held  that  the  judgment  on  the 
special  plea  was  not  a  final  judgment  from  which  an  ap- 
peal could  be  had,  and  rendered  a  decision  as  above  in- 
dicated. 

§  39a.  Immunity. — See  Section  7a.  Under  the  Fed- 
eral anti-trust  act  making  it  an  offense  to  restrain  trade, 
the  Court,  in  U.  S.  vs.  Swift,  186,  Federal,  1002,  held 
that  the  immunity  statute  governing  the  giving  of  testi- 
mony before  the  Commissioner  of  Corporation,  Act  of 
February  11,  1893,  27  Stats.  L.  443,  is  made  expressly  ap- 
plicable by  the  Act  of  February  14,  1903,  which  created 
the  Department  of  Commerce  and  Labor.  This  immunity 
act  of  February  11,  1893,  was  enacted  to  satisfy  the  de- 
mand of  the  Fifth  Constitutional  Amendment  and  does 
so  by  affording  the  witness  absolute  immunity  from  fu- 
ture prosecution  for  any  offense  arising  out  of  the  trans- 
actions to  which  his  testimony  relates  and  which  might 
be  aided  directly  or  indirectly  thereby,  so  as  to  leave  no 
ground  on  which  the  Constitutional  privilege  may  be  in- 
voked. Of  course  it  does  not  act  as  a  shield  against 
prosecution  for  offenses  committed  after  the  testimony 
is  given.    U.  S.  vs.  Swift,  186,  Federal,  1003. 

Revised  Statutes  860,  which  provides  that  evidence 
given  in  a  judicial  proceeding  shall  not  be  used  against 
the  witness  in  any  Federal  Court,  does  not  exempt  him 
from  prosecution  for  perjury  for  giving  such  evidence 
and  does  not  prevent  prosecution  for  perjury  in  a  bank- 
ruptcy proceeding,  nor  does  it  prevent  introduction  in 
support  of  the  charge,  not  only  the  false  statements,  but 
such  other  parts  of  accused's  testimony  as  is  necessary 
to  make  the  charge  intelligible.  Cameron  vs.  U.  S.,  192, 
Federal,  548. 


General  Peovisions  Applicable  to  the  Practice.  109 

In  192  Federal,  83,  Heike  vs.  U.  S.,  the  Circuit  Court  of 
Appeals  affirms  the  conviction  of  an  officer  of  a  corpora- 
tion who  claimed  immunity  because  he  had  produced 
before  a  grand  jury  in  response  to  a  subpoena  duces 
tecum,  certain  record  evidence  of  that  corporation,  which 
showed  his  guilt  as  an  official  of  the  corporation.  Per- 
sons making  no  objection  to  testifying  cannot  afterwards 
complain,  though  called,  said  the  Court  in  U.  S.  vs.  Wet- 
more,  218,  Federal,  227,  but  see  cases  above. 

§  40.  Improper  Person  in  Grand-Jury  Room.— An  ex- 
pert accountant  who  is  not  an  attorney-at-law,  appointed 
by  the  Attorney  General  "a  special  assistant"  to  a  United 
States  Attorney,  to  assist  in  the  investigation  and  prose- 
cution of  a  particular  case  is  not  an  "officer  of  the  De- 
partment of  Justice,"  within  the  meaning  of  Act  June 
30,  1906,  C.  3935,  34  Stat.  816,  and  cannot  be  authorized 
by  the  Attorney  General  to  conduct  or  assist  in  the  con- 
ducting proceedings  before  the  grand  jury — and  his  pres- 
ence in  room  which  results  in  bill  is  ground  for  quashing 
same.  U.  S.  vs.  Heinze,  177  F.,  770.  See  also  U.  S.  vs. 
American  Tobacco  Co.,  177  F.,  774,  as  to  this  and  suffi- 
ciency of  other  abatement  pleas  and  time  for  filing  same. 
Stenographer  not  allowed.  Latham  vs.  U.  S.,  226  Fed. 
p.  420. 

§  40a.  Improper  Person  in  Grand  Jury  Room  Con- 
tinued.— In  Wilson  vs.  U.  S.,  229  Fed.  344,  the  court  takes 
an  entirely  different  position  to  that  supported  by  the 
opinion  in  Latham  vs.  U.  S.,  226  Fed.  420,  and  cited  in 
Sec.  40.  It  is  believed  .that  the  Latham  case  will  be  fol- 
lowed as  the  law.  The  reason  for  the  secrecy  of  the  grand 
jury  and  the  freedom  of  that  body  from  the  presence  of 
unauthorized  persons  who  are  not  under  an  oath  identical 
with  that  taken  by  the  members  of  the  body,  may  not 
only  result  in  a  breaking  of  the  secrecy  of  the  proceed- 
ings but  may  likewise  result  in  an  outside  pressure  even 
though  the  pressure  is  not  susceptable  of  measurement. 
If  one  stenographer  be  present  then  twenty  five  can  be 
present.  Any  number  can  be  present.  When  the  rule  is 
once  broken  it  ceases  to  be  a  rule.  Grand  jurors  who 
begin  their  duties  together  by  simultaneously  uplifting 


110  Federal  Criminal  Law  Procedure. 

their  hands  and  taking  the  oath  and  who  sit  side  by  side 
day  after  day  and  work  in  the  fearlessness  of  secret  ses- 
sions, are  disadvantaged  by  the  presence  of  outsiders, 
however  meek  or  lowly  or  insubordinate  such  outsider 
may  be. 

In  May  vs.  U.  S.,  236  Fed.,  495,  it  was  held  that  an  As- 
sistant Attorney  General,  de  facto,  is  not  an  "improper 
person." 

In  U.  S.  vs.  Phila.  Railway  Co.,  221  Fed.  683,  Judge 
Thompson  held  that  the  Act  of  June  30,  1906,  which  pro- 
vides that  any  attorney  or  counselor,  specially  appointed 
by  the  Attorney  General  under  the  provisions  of  law, 
when  thereunto  specially  directed  by  the  Attorney  Gen- 
eral, may  conduct  grand  jury  proceedings,  does  not  au- 
thorize the  appointment  of  an  attorney,  who  was  not 
intended  to  conduct  the  proceedings,  but  whose  sole  duty 
was  to  report  stenographically  the  testimony  of  witnesses 
to  be  present  in  the  grand  jury  room  during  the  taking 
of  testimony  and  that  if  he  were  so  present  it  would  be 
ground  for  quashing  the  indictment. 

After  an  indictment  has  been  found  and  the  defendant 
has  been  apprehended  and  has  submitted  to  the  jurisdic- 
tion of  the  court  and  been  released  on  bail,  there  is  no  im- 
propriety in  inquiring  of  the  grand  jurors,  or  in  their 
telling,  what  transpired  before  them  in  court,  under  the 
proper  direction  of  the  Judge.  U.  S.  vs.  Perlman,  247 
Fed.  158.  In  truth  it  would  appear  that  it  is  the  holding 
of  the  authorities  that  such  inquiry  need  not  necessarily 
be  in  court.  After  the  presentment  of  the  indictment  and 
after  the  grand  jury  has  heard  the  testimony  and  after 
the  indictment  has  been  made  public  and  the  accused  has 
been  arrested  and  the  grand  jury  has  been  discharged, 
its  members  are  at  liberty  to  disclose  if  they  see  fit,  the 
proceedings  that  were  had  before  them  to  proper  in- 
quirers who  seek  information  with  reference  to  a  par- 
ticular case.  Atwell  vs.  U.  S.,  162  Fed.  97.  In  this  case 
an  attempt  was  made  to  subject  a  grand  juror  to  im- 
prisonment for  contempt  for  disclosing  proceedings  of 
the  grand  jury  room  after  the  grand  jury  had  been  dis- 


General  Provisions  Applicable  to  the  Practice.  Ill 

charged  and  the  Court  of  Appeals  held  that  the  grand 
juror  was  not  subject  to  punishment. 

§  40b.  Hearsay  Testimony  Introduced  Before  Grand 
Jury  bound  to  quash  the  indictment,  U.  S.  vs.  Eubin  et 
al.  218,  Federal,  245.  The  use  by  the  United  States  Dis- 
trict Attorney  of  his  stenographer  in  the  grand  jury  room 
to  take  down  the  testimony  of  witnesses  for  the  use  of 
the  District  Attorney  afterward  is  grounds  for  quashing 
the  indictment.  U.  S.  vs.  Eubin  et  al.,  218  Federal,  245. 
Latham  et  al.  vs.  U.  S.,  226  F.  p.  420;  U.  S.  vs.  Phila- 
delphia Ry.  Co.,  221  F.  683. 

§  41.  Private  Prosecutors  Unknown  in  Federal 
Courts. — The  Federal  statutes  provide  for  the  appoint- 
ment of  District  Attorneys  and  their  assistants,  for  the 
purpose  of  prosecuting  offenses  against  the  Federal  laws. 
Judge  Hammond,  in  United  States  vs.  Stone,  8  Federal, 
232,  held  that  private  prosecutors  are  unknown  to  the 
practice  of  the  Federal  Courts,  the  District  Attorney  be- 
ing alone  authorized  to  prosecute;  and  in  speaking  of 
this  matter,  he  said: 

"Under  our  Federal  practice,  from  the  earliest  times,  and  by  force 
of  the  statute,  the  District  Attorney  is  the  only  prosecutor  known  to 
our  law;  and  as  a  matter  of  fact,  in  this  Court  at  least,  no  private 
prosecutor  has  ever  been  recognized.  Act  of  1879,  Chapter  XX.,  Section 
35,  [1  St.,  92];  Revised  Statutes,  Sec.  771;  U.  S.  vs.  Mundel,  6  Coll.. 
245;  U.  S.  vs.  McAvoy,  6  Blatchf.,  418;  U.  S.  vs.  Blaisdell,  3  Ben., 
132,  where  the  Court  refused  to  recognize  an  agreement  of  the  Execu- 
tive Department  not  to  prosecute  the  offender,  and  said,  that,  'when 
there  is  no  District  Attorney  in  commission,  the  Government  cannot 
prosecute  in  this  Court.'  1  Bishop  Criminal  Pr.,  Sec.  278.  It  is  im- 
possible, therefore,  for  anyone  to  occupy  the  place  of  a  private  pros- 
ecutor in  this  Court." 

§  41a.  Assistants  to  District  Attorneys.— Sec.  363  of 
the  Revised  Statutes  of  the  United  States  gives  the  Attor- 
ney General  power  to  employ,  in  the  name  of  the  United 
States,  attorneys  "to  assist  the  district  attorney.' :  It 
places  no  restriction  upon  the  powers  of  the  district  at- 
torney and  they  come  within  the  general  rule  that  an  as- 
sistant, duly  appointed  to  prosecute,  is  clothed  will  all 
the  powers  and  privileges  of  the  prosecuting  attorney, 
all  acts  done  by  him  in  that  capacity  must  be  regarded 


112  Federal.  Criminal  Law  Procedure. 

as  if  done  by  the  prosecuting  attorney  himself.  Brown 
vs.  U.  S.,  257  Fed.  703,  citing  32  Cyc.  724;  Parish  vs.  U. 
S.,  100  U.  S.,  500;  May  vs.  U.  S.,  236  Fed.  495. 

§  42.  Proof  of  Witness'  Former  Conviction. — In  the 
absence  of  a  Federal  statute  on  the  subject,  the  incom- 
petency of  a  witness  by  reason  of  his  prior  conviction  of 
a  felony,  cannot  be  shown  upon  his  examination,  but  only 
by  the  production  of  the  record,  or  an  exemplified  copy 
of  it.  Rise  vs.  United  States,  144  Federal,  374.  If  the 
guilt  of  the  party  should  be  shown  by  oral  evidence,  and 
even  upon  his  own  admission  (though  in  neither  of  these 
modes  can  it  be  proved,  if  the  evidence  be  objected  to), 
or  by  his  plea  of  guilty  which  has  not  been  followed  by  a 
judgment,  the  proof  does  not  go  to  the  competency  of 
the  witness,  however  it  may  effect  his  credibility;  and  the 
judgment  itself,  when  offered  against  his  admissibility, 
can  be  proved  only  by  the  record,  or  in  proper  cases,  by 
an  authenticated  copy,  which  the  objector  must  offer  and 
produce  at  the  time  when  the  witness  is  about  to  be 
sworn,  or  at  furthest,  in  the  course  of  the  trial.  I  Green- 
leaf  on  Evidence,  Fourteenth  Edition,  375;  457.  See  also 
Sections  26  and  26a. 

Sec.  42x.  Proof  of  Witness'  Former  Conviction. — A 
conviction  in  a  state  court  is  no  bar  to  the  witness  testify- 
ing in  the  federal  court.  Brown  vs.  U.  S.,  233  Fed.  353; 
Rosen  vs.  U.  S.,  237  Fed.  810;  Pakas  vs.  U.  S.,  240  Fed. 
350;  Ammerman  vs.  U.  S.,  267  Fed.  136. 

The  competency  of  a  witness  in  the  federal  court  is 
no  longer  determined  by  the  common  law.  Rosen  vs.  U. 
S.,  245  U.  S.,  467. 

For  the  rule  of  decision  in  the  federal  court  see  McCoy 
vs.  U.  S.,  247  Fed.  861 ;  the  judiciary  act  adopts  the  law 
of  the  state  which  is  in  force  at  the  time  of  the  admission 
of  such  state  to  the  union  and  the  federal  courts  were 
created  therein. 

A  witness  who  testifies  renders  admissible  the  record 
of  his  former  conviction.  Williams  vs.  U.  S.,  254  Fed. 
52;  but  the  prosecution  is  bound  by  the  answer  of  the 
defendant  as  to  a  collateral  crime  and  cannot  impeach 


General  Provisions  Applicable  to  the  Practice.  113 

the  answer  by  introducing  the  judgment.    Bullard  vs.  U. 
S.,  245  Fed.  837. 

§  42y.  Evidence  of  Another  Crime. — In  a  prosecution 
for  one  crime  evidence  of  an  indictment  for  another  crime 
is  not  admissible.  Coyne  vs.  U.  S.,  246  Fed.  120;  Gordon 
vs.  U.  S.,  254  Fed.  53  see  also  brief  in  U.  S.  vs.  Bryant  and 
U.  S.,  vs.  Hardy,  257  Fed.  and  256  Fed. 


CHAPTER  III. 

PRACTICE   SUGGESTIONS. 

§  42a.  Aliens.     Deportation   of  and   Decisions   on   Statutes. 

42aa.  Aliens  Continued. 

42b.  Accomplice. 

42bb.  Accomplice  Continued. 

42c.  Alaska — Territorial   Courts. 

42d.  Assignment  of  Errors.     Supersedas  and  Writ  of   Error. 

42dd.  Assignment  of  Errors  Continued. 

42e.     Army  and  Navy;  Court  Martial,  Need  Control  by  Civil  Courts. 

42ee.  Army  and  Navy  Continued. 

42f.  Appeal  and  Writ  of  Error:    Forma  Pauperis. 

42ff.  Technical  Errors. 

42g.  Bill  of  Particulars. 

42gg.  Bill   of   Particulars   Continued. 

42h.  Corporations — Indictment  of;  Individual  Aiding  and  Abetting 
— Procedure. 

42hh.  Corporation — Indictments  of  Continued 

42i.  Error,  Not  Assigned,  Not  Ordinarily  Noticed. 

42ii.  Bill  of  Exceptions  and  Error. 

42j.  Continuance — Granting  is  Matter  of  Discretion;  Application 
which  shows  Mental  Weakness  of  Defendant  Requires  a  Court 
to  Try  That  Issue  First. 

42jj.  Continuance  Continued. 

42k.  Extradition;  Not  Defeated  by  Habeas  Corpus;  Technicality  of 
Trial  not  Required;  General  Rules  For;  Certified  Copy  from 
Secretary  of  State  Sufficient. 

42kk.  Extradition  Continued. 

421.  Judge — Disqualifications  of — How  to  proceed:  Does  Not  Apply 
to  Appellate  Judges. 

42m.  Nolo  Contendere — Practice  Regulating;  After  Plea  Accepted 
Cannot  be  Withdrawn  Except  by  Leave  of  Court. 

42n.  New  Trial;  Discretion  of  Court — Rulings  on  Not  Assigned  as 
Error;  If  Court  Refuses  to  Exercise  Its  Discretion  Such 
Failure  is  Error. 

42nn.  New  Trial  Continued. 

42o.  Limitations;  Excepts  Fugitives;  Federal  and  not  State  Stat- 
utes Regulate;  Revenue  Laws,  Prosecution  Under — Within 
What  Time;  Filing  of  Affidavit  Before  Commissioner  Will 
not  Stop  Running  of,  nor  does  Nolle  Prosse;  May  be  Raised 
by  Demurrer. 

42oo.  Limitations  Continued. 

42p.  Sherman  Law— Trust  Statute;  Federal  Trade  Commission;  Pur- 
chase of  Competing  Plants;  Must  be  Undue  Restraint;  Stand- 
ard Oil  Cases — Tobacco  Cases. 

(114) 


Peacticb  Suggestions.  115 

42pp.  Monopoly— Sherman  Act— Clayton  Act. 

42q.  Verdict,  Motion  to  Direct,  Waiver;     Coercing  of  Verdict. 

42qq.  Verdict— Motion    to    Direct— Coercing    Continued. 

42r.  Writ  of  Error— Superseadeas;   Direct  to  Supreme  Court,  When; 

Pauper  has  right  to. 
42rr.  Writ  of  Error — Supersedeas — Pauper  Continued. 
42s.  Hand  Writing,  Comparison  Statute;    Cannot  be  Introduced  for 

Mere  Purpose  of. 

§  42a.  Aliens. — An  alien  acquitted  by  a  jury  may  be 
deported  by  the  immigration  authorities  for  the  same  of- 
fense. Ex  parte  Young,  211  Federal,  371. 

The  contrary  has  been  held  in  Chen  Kee  vs.  U.  S.,  196, 
Federal,  74.  There  is  no  provision  in  the  law  for  the  issu- 
ance of  a  United  States  Commissioner's  certificate  and 
therefore  it  is  of  no  value  to  the  holder.  Lum  Bing  Wey 
vs.  U.  S.,  201,  Federal,  379. 

A  Chinaman  has  a  right  to  bond  pending  his  first 
hearing.  Chin  Yah  vs.  Caldwell,  187  Federal,  592;  U.  S. 
vs.  Yet  Yee,  192,  Federal,  577. 

The  burden  is  on  the  Chinaman  to  show  that  he  is 
native-born.  Yee  Ging  vs.  U.  S.  190,  Federal,  270:  U.  S. 
vs.  Ching  Fong,  192,  Federal,  485. 

A  Chinese  merchant  is  not  subject  to  deportation  if  his 
interest  is  bona  fide,  however  small,  210,  Federal,  617. 

A  Chinaman  who  was  a  merchant  when  the  registration 
law  required  him  to  register  and  who  did  so  and  who 
thereafterward  became  a  laborer,  is  not  subject  to 
deportation.    IT.  S.  vs.  Wing,  211,  Federal,  935. 

Sons  of  a  Chinaman  who  is  entitled  to  remain  in  this 
country,  who  become  laborers  upon  reaching  their  ma- 
jority, are  not  subject  to  deportation.  U.  S.  vs.  Yuen,  211, 
Federal,  1001. 

To  the  same  effect  is  the  case  of  Lew  Lin  Shew,  217, 
Federal,  317,  and  in  this  latter  case  the  Court  determines 
what  an  affidavit  shall  charge  in  order  to  be  sufficient 
under  these  statutes  for  the  deportation  of  aliens. 

" Moral  turpitude"  as  embraced  in  the  34th  Stats.  L. 
899,  U.  S.  Compiled  Statutes,  199  Supplement,  p.  500, 
which  is  the  immigration  act  in  full,  is  defined  in  ex  parte 
Young,  211,  Federal,  371. 


116  Federal,  Criminal  Law  Procedure. 

The  meaning  of  five  years'  residence  is  determined  in 
United  States  vs.  Cantinie,  212,  Federal,  925.  The  de- 
portation of  aliens  under  the  immigration  act  is  in  no 
sense  a  trial.   Siniscolchia  vs.  Thomas,  195,  Federal,  701. 

The  entire  method  to  be  followed  for  the  deportation  of 
both  men  and  women  for  prostitution  under  the  Act  will 
be  found  outlined  in  ex  parte  Pouliot,  196,  Federal,  437. 
The  right  of  the  United  States  to  recover  the  penalty  for 
contracting  with  aliens  and  the  method  to  be  pursued  for 
its  collection,  is  discussed  in  United  States  vs.  Dwight 
Mfg.  Co.,  210  Federal,  74.  Government  may  proceed 
under  Act  February  24,  1907,  compiled  Stat.,  1913,  4244, 
either  civilly  or  criminally  to  collect  penalty  for  import- 
ing contract  labor. 

The  meaning  of  the  words  "free  white  person"  within 
the  Act  is  determined  in  in  re  Najour,  174  Federal,  735. 

As  to  when  habeas  corpus  may  be  resorted  to  by  an 
alien  who  has  been  deported  by  the  immigration  authori- 
ties, is  determined  in  ex  parte  Gregory,  210  Federal,  680. 

The  United  States  Courts  will  not  overrule  a  State 
Court  that  has  granted  a  naturalization  certificate  unless 
there  be  substantial  difference  between  the  state  ruling 
and  the  Federal  ruling,  and  the  Federal  ruling  being  the 
paramount  ruling  must  prevail  and  in  such  a  condition 
the  United  States  Court  would  cancel  a  certificate  issued 
by  a  State  Court.  U.  S.  vs.  Lanare,  207  Federal,  865. 

The  new  immigration  act  provides  in  substance  that 
applications  for  final  papers  must  be  made  within  seven 
years  after  the  declaration  of  intention  is  filed.  This 
means  that  those  who  had  filed  their  declaration  of  in- 
tention prior  to  the  passage  of  the  1906  act  must  seek 
their  final  papers  within  seven  years  after  that  act  became 
a  law,  though  there  are  some  decisions  to  the  contrary, 
218  Federal,  168;  210  Federal;  211  Federal. 

The  granting  of  bail  to  a  Chinese  person  after  the 
deportation  order  has  been  entered,  is  a  matter  of 
discretion  with  the  Court.  132  Federal,  109;  188  Federal, 
350. 

Chinese  exclusive  Act,  Sept.  13,  1888,  Comp.  St.  1913, 
4310,  requires  master  of  vessel  to  "knowingly"  commit 


Practice  Suggestions.  117 

the  acts  denounced  and  such  intent  is  not  met  by  proof 
that  a  Chinese  member,  bona  fide,  of  crew,  escaped  and 
stayed  in  the  United  States.  U.  S.  vs.  Innes,  218  Federal, 
705. 

42a.  a.    Aliens  Continued. 

An  alien  will  be  deported  when  he  is  likely  to  become 
a  public  charge  under  the  Act  of  Feb.  5,  1917,  Ex  parte 
Mitchell,  256  Fed.  229,  the  full  procedure  for  which  will 
be  found  in  Colver  vs.  Immigrant,  265  Fed.  17;  U.  S.  vs. 
Uhl,  266  Fed.  35. 

Expatriation — The  Act  Governing — Mar.  2,  1907,  Sec. 
2,  See  U.  S.  vs.  Anderson,  231  Fed.  546. 

Chinemen  must  be  tried  and  tried  fairly,  Kwock  vs. 
White,  40  Sup.  Ct.  Eep.  566. 

A  certificate  granted  by  the  United  States  Commission- 
er to  a  Chinese  person  will  protect  him,  U.  S.  vs.  Lew,  224 
Fed.  649;  but  is  not  evidence  for  a  minor  son,  Ex  parte 
Chin,  224  Fed.  138. 

A  student  who  is  temporarily  forced  to  work  is  not 
subject  to  deportation,  U.  S.  vs.  Gin;  253  Fed.  210;  and  a 
Chineman  merchant  has  the  right  of  re-entry,  Chin  Fong, 
258  Fed.  849. 

A  member  of  the  Communist  Party  will  be  deported 
under  the  Act  of  U.  S.  vs.  Wallis,  268  Fed.  413. 

Under  the  Act  of  Feb.  5,  1917,  which  punishes  the 
vessel  which  brings  in  prohibited  aliens  and  which  denies 
the  right  to  import  laborers  and  prostitutes  and  criminals, 
many  interesting  questions  have  arisen  as  indicated  in 
the  following  cases;  to  bring  in  aliens,  Diug  vs.  U.  S.  246 
Fed.  80;  who  is  a  " white  person"  Dow  vs.  U.  S.  226  Fed. 
145;  also  Easurk  273  Fed.  207;  the  sort  of  evidence  that 
shall  be  offered  as  to  the  five  years  residence,  U.  S.  vs. 
Dean,  230  Fed.  957;  one  shall  be  deported  to  the  country 
from  whence  he  came  and  the  judicial  notice  of  citizen- 
ship, U.  S.  vs.  Sisson,  230  Fed.  974;  the  act  excludes 
contract  laborers  but  excepts  the  provisions  and  a  Japan- 
ese teacher  is  within  such  exceptions,  Tat  vs.  IT.  S.  260 
Fed.  104;  a  nephew  may  remain  with  his  uncle,  U.  S.  vs. 
Jew,  232  Fed.  279;  an  alien  employed  as  a  cook  in  a  house 
of  prostitution  is  squarely  within  the  statute  and  must 


118  Federal.  Criminal.  Law  Procedure. 

be  deported,  Ex  parte  Loo  210  Fed.  995,  Ex  parte  Young, 
211  Fed.  370;  one  who  gave  a  bad  check  in  Canada  is  not 
subject  to  deportation  therefor,  Howe  vs.  U.  S.  247  Fed. 
292;  a  marriage  of  a  foreign  prostitute  to  an  American 
will  not  save  her  from  deporation,  Ex  parte  Flores,  272 
Fed.  783;  it  is  a  misdemeanor  to  solicit  immigrants  with 
a  promise  of  employment  under  the  Act  of  Feb.  20,  1907, 
and  the  offense  is  complete  though  the  alien  is  denied 
entry,  U.  S.  vs.  Morrisey,  245  Fed.  923. 

§  42b.  Accomplice. — So  manifest  is  the  danger  of  con- 
victing a  man  on  evidence  from  a  source  confessedly  cor- 
rupt, and  delivered  by  the  witness  to  shield  himself  from 
merited  punishment,  that  the  judges,  while  explaining  to 
the  jury  their  right  to  convict  on  it  alone,  by  way  of 
caution,  advise  them  not  to  return  a  verdict  of  guilty 
unless  it  is  corroborated  by  evidence  from  a  purer  source, 
yet  they  are  not  as  of  law  required  to  give  this  advice. 
Bishop's  New  Criminal  Procedure,  2nd  Vol.,  Section 
1169. 

There  is  nothing  which  forbids  the  conviction  of  a  de- 
fendant at  Common  Law  or  in  a  Federal  Court  on  the  un- 
corroborated testimony  of  an  accomplice.  Richardson  vs. 
U.  S.,  181  Federal,  1;  Lung  vs.  U.  S.,  218  Federal,  817. 
Diggs  vs.  U.  S.,  220  Federal,  545.  It  is  true  there  is  a  well 
established  practice  sanctioned  by  long  judicial  approba- 
tion, to  caution  jurors  about  accepting  the  evidence  of  an 
accomplice  without  material  corroboration,  and  many  of 
the  states  forbid  a  conviction  on  the  testimony  of  an  un- 
corroborated accomplice.  Coleman  vs.  State,  44  Tex.  109. 
Bishop's  New  Criminal  Procedure,  2nd  Vol.  Section  1169. 

§  42bb.     Accomplice  Continued. 

The  rule  as  stated  above  in  the  Federal  Court  is  the 
common  law  rule  and  is  not  altered  by  the  state  law,  Ban- 
dy vs.  U.  S.  245  Fed.  100;  Freed  vs.  U.  S.  266  Fed.  1012; 
Graboyes  vs.  U.  S.  250  Fed.  793. 

And  while  the  government  may  rest  on  the  unsup- 
ported and  uncorroborated  testimony  of  an  accomplice, 
Rosen,  vs.  U.  S.  271,  Fed.  651,  Wagman  vs.  U.  S.  269 
Fed.  568,  U.  S.  vs.  Fischer,  245  Fed.  477,  Hollis  vs.  IT.  S. 
246  Fed.  832,  Ray  vs.  U.  S.  265  Fed.  257,  Gretsch  vs.  U. 


Practice  Suggestions.  119 

S.  242  Fed.  897,  Erber  vs.  U.  S.  234  Fed.  221,  Heitler 
vs.  U.  S.  244  Fed.  140,  Wallace  vs.  U.  S.  243  Fed.  300, 
the  safest,  sanest  and  most  civilized  practice,  even  in 
the  Federal  Court  is  to  have  corrobration,  U.  S.  vs.  Mur- 
phy, 253  Fed.  404,  McGinniss  vs.  U.  S.  256  Fed.  621. 

It  is  not  reversable  error  to  fail  to  instruct  on  an  ac- 
complice's testimony,  Nee  vs.  U.  S.  267  Fed.  85. 

§  42c.  Alaska. — Territorial  Courts  are  controlled  by 
the  general  United  States  Statutes,  202  Federal,  457. 

§  42d.  Assignment  of  Errors. — The  rules  of  the  differ- 
ent circuits  require  that  assignments  of  error  shall  be 
filed  by  the  plaintiff  in  error  or  appellant  with  the  Clerk 
of  the  lower  Court  with  his  petition  for  the  writ  of  error 
or  appeal  and  assignment  of  errors,  which  shall  set  out 
separately  and  particularly  each  error  asserted  and  in- 
tended to  be  urged,  and  that  no  writ  of  error  or  appeal 
shall  be  allowed  until  such  assignment  of  errors  shall 
have  been  filed.  193  Federal  VII.  The  failure,  how- 
ever, to  file  an  assignment  of  errors  before  the  allowance 
of  an  appeal,  does  not  deprive  the  Appellate  Court  of 
jurisdiction  and  the  appeal  will  not  be  dismissed  because 
the  assignment  of  errors  was  not  filed  until  later,  where 
there  was  a  valid  reason  therefor.  Bernard  vs.  Lea,  210 
Federal,  583. 

An  error  not  assigned  may  sometimes  be  noticed,  es- 
pecially if  it  be  a  fundamental  error.  Savage  vs.  U.  S., 
213  Federal,  31. 

The  writ  of  error  must  be  sued  out  and  lodged  in  the 
Court  below  within  sixty  days  from  the  date  of  judg- 
ment.   211  Federal,  970." 

A  supersedeas  is  not  obligatory  upon  the  Court..  188 
Federal,  396.    U.  S.  vs.  Gibson. 

Writ  of  error  may  go  direct  to  the  Supreme  Court  of 
the  United  States  from  the  trial  court  under  certain  con- 
ditions detailed  in  United  States  vs.  Nixon  et  al.,  Supreme 
Court  of  the  United  States,  Oct.  Term,  1914. 

§  42dd.     Assignment  of  Errors  Continued. 
An  assignment  of  error  must  be  based  on  an  excep- 
tion, Finlev  vs.  U.  S.  256  Fed.  845. 


120  Federal  Criminal  Law  Procedure. 

An  allowance  of  the  writ  of  error  does  not  divest  the 
trial  court  of  jurisdiction  to  do  certain  things,  U.  S.  vs. 
Pollak,  230  Fed.  532. 

The  court  cannot  legally  grant  leave  to  amend  the  as- 
signment of  errors,  Kreuzer  vs.  U.  S.,  254  Fed.  34. 

While  a  criminal  case  must  be  taken  up  by  a  writ  of 
error  the  court  determined  in  Buessell  vs.  U.  S.  258  Fed. 
811,  that  it  would  consider  a  criminal  case  which  came 
to  it  by  appeal. 

Assignments  of  error  must  be  copied  in  the  brief, 
Lohman  vs.  Company,  243  Fed.  517,  and  assignments 
which  are  not  so  copied  in  accordance  with  the  rules  will 
not  be  considered,  Harris  vs.  IT.  S.  249  Fed.  41. 

§  42e.  Army  and  Navy. — Courts  martial  will  not  be 
interfered  with  by  Civil  Courts.  Tucker,  212  Federal, 
569.  Civil  Courts  are  not  Courts  of  Error  to  review  the 
judgments  of  courts  martial  where  they  are  legally  organ- 
ized and  have  jurisdiction  of  the  offense  and  of  the  per- 
son and  have  complied  with  statutory  requirements 
governing  their  procedure.  Mullan  vs.  U.  S.,  212,  U.  S., 
516. 

§  42ee.    Army  and  Navy  Continued. 

In  time  of  war  the  jurisdiction  of  courts  martial  ex- 
tends to  all  offenses  that  are  specified  in  the  articles  of 
war  and  the  jurisdiction  is  supported.  Ex  parte  King. 
246  Fed.  848;  the  court,  in  U.  S.  vs.  Waller,  225  Fed! 
673,  refuses  the  jurisdiction  of  courts  martial. 

For  decisions  relating  to  conscription,  draft  boards, 
and  soliciting  to  necessary  draft  see  U.  S.  vs.  Stephens, 
245  Fed.  956;  Ex  parte  Beck  245  Fed.  967  and  U.  S.  vs. 
Galleanni,  245  Fed.  977. 

§  42/.  Appeal  and  Writ  of  Error. — The  new  judicial 
code  of  March  3,  1911,  provides  at  Section  128,  page  143, 
Hopkins  Judicial  Code,  that  the  Circuit  Court  of  Appeals 
shall  exercise  appellate  jurisdiction  to  review  by  appeal 

or  writ  of  error  the  final  decisions  in  the  District  Courts. 

#     #     # 

Section  238  provides  for  the  taking  by  appeal  or  writ  of 
error  direct  to  the  United  States  Supreme  Court  from  the 
District  Court,  in  any  case  in  which  the  jurisdiction  of  the 


Pkactice  Suggestions.  121 

Court  is  in  issue,  in  which  case  the  question  of  jurisdiction 
alone  shall  be  certified  to  the  Supreme  Court  from  the 
Court  below  for  decision;  from  the  final  sentence  and  de- 
crees in  prize  cases;  in  any  case  that  involves  the  construc- 
tion or  application  of  the  Constitution  of  the  United 
States;  in  any  case  in  which  the  Constitutionality  of  any 
law  of  the  United  States,  or  the  validity  or  construction 
of  any  treaty  made  under  its  authority,  is  drawn  in 
question;  and  in  any  case  in  which  the  Constitution  or 
law  of  a  State  is  claimed  to  be  in  contravention  of  the 
Constitution  of  the  United  States. 

Section  240  of  the  same  act  provides  that  in  any  case, 
civil  or  criminal,  in  which  the  judgment  or  decree  of  the 
Circuit  Court  of  Appeals  is  made  final  by  the  provisions 
of  that  Act,  it  shall  be  competent  for  the  Supreme  Court 
to  require,  by  certiorari  or  otherwise,  upon  the  petition 
of  any  party  thereto,  any  such  case  to  be  certified  to  the 
Supreme  Court  for  its  review  and  determination,  with 
the  same  power  and  authority  in  the  case  as  if  it  had 
been  carried  by  appeal  or  writ  of  error  to  the  Supreme 
Court. 

All  criminal  cases  are  cases  at  law  and  therefore  are 
reviewable  only  by  writ  of  error  and  not  by  appeal.  All 
equity  cases  are  reviewable  only  by  appeal.  The  disbar- 
ment of  an  attorney  is  an  action  in  law  and  the  proceed- 
ings of  the  lower  Court  are  reviewed  upon  writ  of  error 
instead  of  upon  appeal,  Thatcher  vs.  U.  S.,  212  Federal, 
805. 

A  writ  of  error  may  be  prosecuted  in  forma  pauperis 
as  provided  by  the  Act  of  June  25,  1910.  Latham  vs. 
U.  S.,  210  Federal,  159. 

This  Act  provides  for  appellate  rights  by  a  pauper 
either  by  writ  of  error  or  appeal  if  the  person  shall  certi- 
fy under  oath  his  poverty  and  inability  to  pay  the  costs 
or  to  give  security  therefor,  and  provided  the  trial  court 
shall  not  certify,  in  writing,  that  in  its  opinion,  such  ap- 
peal or  writ  of  error  is  not  taken  in  good  faith.  Act  of 
June  25,  1910,  p.  401,  Thornton  on  Federal  Acts. 


122  Federal  Criminal  Law  Procedure. 

§  42ff.     Technical  Errors. 

In  answer  to  a  popular  demand  the  congress  passed,  in 
Feb.  1919,  an  amendment  to  Sec.  269  of  Judicial  Code, 
what  has  been  termed  the  Harmless  Error  Act.  When 
the  appellate  court  is  convinced  of  the  guilt  of  the  defend- 
ant and  feel  that  technical  errors  would  not  effect  his 
substantial  rights  it  will  affimi  the  case.  In  any  other 
country  than  America  a  statute  of  this  sort  would  be 
very  dangerous  and  I  am  not  prepared  to  say  that  it  is 
not  dangerous  here.  If  we  are  to  have  an  adjudicated 
system  of  rules  and  procedure  for  the  trial  of  men 
charged  with  crime  and  if  such  men  have  the  right  of 
precedent  as  well  as  statutory  and  constitutional  safe- 
guards I  am  unable  to  draw  a  dividing  line  between  such 
of  these  as  are  imperative  and  needful  and  such  of  these 
as  are  useless  and  formal.  If  a  right  is  denied  it  is  im- 
material whether  it  is  a  large  right  or  a  small  right.  It 
is  like  taking  one's  property  —  the  value  of  it  is  im- 
material —  the  wrong  is  what  concerns  civilization. 

The  courts  have  talked  about  this  amendment  spar- 
ingly but  seem  to  have  admitted  its  presence.  Sneier- 
son  vs.  U.  S.  264  Fed.  275;  Dye  vs.  U.  S.  262  Fed.  6. 

§  42#.  Bill  of  Particulars. — When  an  indictment  sets 
forth  the  facts  constituting  the  essential  elements  of  the 
offense  with  such  certainty  that  it  cannot  be  pronounced 
ill  upon  motion  to  quash  or  demurrer,  and  yet  is  ac- 
knowledged in  such  language  that  the  accused  is  liable 
to  be  surprised  by  the  production  of  evidence  for  which 
ne  is  unprepared,  he  should,  in  advance  of  tne  trial,  ap- 
ply for  a  bill  of  the  particular.  Rinker  vs.  U.  S.,  151 
Federal,  759;  Loring  vs.  U.  S.,  91  Federal,  881.  A  bill 
of  particulars  cannot  make  an  indictment  valid  which 
fails  to  state  an  essential  element  of  the  offense, ■  when 
objection  is  made  at  the  proper  time  and  in  the  proper 
manner.  May  vs.  U.  S.,  199  Federal,  61.  Morris  vs.  U. 
S.,  161  Federal,  672.    Connors  vs.  U.  S.,  158,  U.  S.  408. 

§  42gg.     Bill  of  Particulars  Continued. 

An  application  for  a  bill  of  particulars  may  be  denied 
on  the  second  trial,  Ciafridini  vs.  U.  S.  266  Fed.  471; 
the  granting  of  a  bill  of  particulars  is  a  matter  of  dis- 


Practice  Suggestions.  123 

cretion,  Moens  vs.  U.  S.  267  Fed.  317;  Horowitz  vs.  U.  S. 
262  Fed.  48;  IT.  S.  vs.  Rosenwasser,  255  Fed.  233;  U.  S. 
vs.  Pierce,  245  Fed.  888;  U.  S.  vs.  Gouled,  253  Fed.  239; 
a  denial  of  a  bill  is  not  reviewable  Savage  vs.  U.  S.  270 
Fed.  15. 

A  bill  of  particulars  cannot  correct  a  defective  indict- 
ment, Collins  vs.  U.  S.  253  Fed.  609. 

The  court  may  order  a  bill  of  particulars  when  an  in- 
dictment is  good  on  demurrer  but  does  not  furnish  the 
defendant  with  all  the  information  that  he  is  entitled  to 
have  before  being  compelled  to  go  to  trial,  Foster  vs. 
U.  S.  253  Fed.  481.    Wilson  v.  U.  S.  275  F.  307. 

§  42h.  Corporations — Indictment  of. — Regardless  of 
the  original  position  of  the  Courts  of  this  and  the  mother 
country,  and  regardless  of  the  differences  that  exist  in  the 
early  decisions  of  the  Courts  of  this  country,  it  is  now  well 
settled  that  corporations  may  be  indicted,  as  well  for  mis- 
feasance as  for  non-feasance.  10  Cyc.  1226.  The  original 
theory  was  that  a  corporation  was  not  indictable  for  acts 
of  misfeasance  because  it  had  no  power,  under  its  charter, 
to  commit  such  acts,  but  that  when  those  who  professed  to 
act  in  this  behalf  committed  acts  of  misfeasance  they  were 
acting  ultra  vires  and  their  acts  were  personal  acts  and 
not  the  acts  of  the  corporation.  This  rule  was  strictly 
analogous  to  the  ancient  doctrine  that  evil  intent  or  mo- 
tive cannot  be  imputed  to  a  corporation  and  that  a  cor- 
poration cannot  be  made  liable  to  a  civil  action  for  a 
trespass  or  other  malicious  injury  unless  committed  by 
deed.    10  Cyc.  1226. 

These  theories  and  ideas  have  been  completely  over- 
turned and  this  is  thoroughly  settled,  both  in  England 
and  in  the  United  States,  that  a  corporation  may  be 
prosecuted,  both  for  misfeasance  and  non-feasance.  El- 
lis vs.  U.  S.,  206  U.  S.;  U.  S.  vs.  Kelso,  86  Federal,  304; 
U.  S.  vs.  Corporation  I,  125  Federal,  94. 

In  Kaufman  vs.  U.  S.,  212  Federal,  613,  the  conviction 
of  an  individual  for  aiding  and  abetting  a  corporation 
in  the  commission  of  a  criminal  offense  was  affirmed. 
In  the  Kaufman  case  Circuit  Judge  Rogers  says:  "It 
is  undoubtedly  the  case  that  decisions  and  dicta  can  be 


124  Federal  Criminal.  Law  Procedure. 

found  denying  that  a  corporation  can  be  indicted.  Lord 
Holt  is  reported  as  having  said  that  'A  corporation  is 
not  indictable,  but  the  particular  members  of  it  are.' 
But  it  is  a  well-established  principle  of  modern  juris- 
prudence that  an  indictment  will  lie  against  a  corpora- 
tion, although  there  are  some  crimes,  as  treason  or  felony 
or  breach  of  the  peace,  in  respect  of  which  it  is  agreed 
that  an  indictment  could  not  be  maintained  against  it, 
and  it  has  been  held  that  where  a  statute  prescribes  fine 
and  imprisonment,  it  is  not  applicable  to  a  corporation, 
because  a  corporation  cannot  be  imprisoned.  U.  S.  vs. 
Braun,  158  Federal,  456.  But  in  Cohen  vs.  U.  S.,  157 
Federal,  651,  this  Court  decided  that  a  bankrupt  corpo- 
ration was  capable  of  committing  offense  of  knowingly 
or  fraudulently  concealing  its  property  from  its  trustee, 
definable  and  made  punishable  by  the  bankruptcy  act, 
and  that  persons  who  conspire  to  cause  a  corporation 
to  commit  such  an  act  are  indictable  for  the  conspiracy 
and  that  it  is  immaterial  that  a  corporation  is  not  or 
cannot  be  indicted  as  one  of  the  conspirators. 

The  indictment  should  be  against  the  corporation  in 
its  corporate  name.  10  Cyc.  1231;  3rd  Chitty  Criminal 
Law,  587. 

In  the  Ellis  case,  cited  supra,  there  were  a  number  of 
corporations  indicted  for  violation  of  the  Federal  eight- 
hour  Act,  and  so  far  as  the  record  discloses  in  the  Su- 
preme Court  of  the  United  States,  there  was  no  question 
raised  whatsoever  as  to  the  propriety  of  the  proceedings. 

Upon  the  filing  of  an  information  or  an  indictment 
against  a  corporation,  the  moving  officer  should  cause  a 
summons  to  be  prepared  for  service  upon  the  corporation 
which  should  direct  the  defendant  to  appear  before  the 
Court  on  a  given  date  to  answer  the  charge  contained  in 
the  accusing  document,  and  such  summons  should  con- 
tain a  general  statement  of  the  nature  of  the  charge,  and 
advise  the  defendant  that  it  might  secure  a  more  com- 
plete statement  of  such  offense  by  referring  to  the  infor- 
mation or  indictment  on  file  with  the  clerk.  U.  S.  vs. 
Kelso,  86  Federal,  304;  U.  S.  vs.  Nixon,  Supreme  Court  of 
the  United  States,  Oct.  Term,  1914. 


Pbactice  Suggestions.  125 

In  the  case  of  Hanley  vs.  IT.  S.,  186  Federal,  711,  the 
defendant,  who  was  general  manager  for  a  corporation, 
was  convicted  for  aiding  and  abetting  other  employees 
of  the  corporation,  but,  the  case  does  not  seem  to  raise 
the  question  being  here  considered  as  to  the  liability  of 
the  corporation. 

In  the  preparation  of  summons  or  citation  for  a  cor- 
poration to  answer  a  criminal  charge,  I  would  suggest 
the  following  of  the  statute  of  the  particular  state  in 
which  the  prosecution  is  pending  that  covers  the  service 
of  Court  summons  for  a  corporation.    U.  S.  vs.  Kelso. 

Bishop,  in  Bishop's  first  volume,  New  Criminal  Law, 
page  255,  Section  417,  treats  of  the  capacity  of  a  corpo- 
ration for  crime  and  maintains  that  a  corporation  can- 
not, in  its  corporate  capacity,  commit  a  crime  by  an  act 
in  the  fullest  sense  ultra  vires,  but  within  the  sphere  of 
its  corporate  capacity,  and  to  an  undefined  extent,  when- 
ever it  assumes  to  act  as  a  corporation  it  has  the  same 
capabilities  of  criminal  intent  and  of  act,  in  other  words, 
of  crime,  as  an  individual  man  sustaining  to  the  thing 
the  like  relation. 

Of  course  it  will  be  borne  in  mind,  which  question  can 
seldom  arise  in  a  criminal  prosecution,  however,  that  a 
corporation  is  a  citizen  only  of  the  state  in  which  it  is 
incorporated.  Baldwin  vs.  Pacific,  199  Federal,  291; 
Lemon  vs.  Imperial,  etc.,  199  Federal,  927;  Woerheider 
vs.  Jones,  etc.,  199  Federal,  535.  Eevett  vs.  Clise,  207 
Federal,  673. 

§  42hh.     Corporations —  Indictments  of  Continued. 

Though  a  corporation  cannot  commit  certain  crimes, 
and  may  not  be  arrested  or  imprisoned,  a  proceeding 
against  it  for  the  violation  of  a  criminal  statute  is  a 
"criminal  proceeding,"  with  all  the  incidents  of  such 
a  proceeding,  and  an  information  therein  is  defective, 
if  made  upon  the  oath  of  parties  named  in  annexed  affi- 
davits taken  before  notaries  public,  U.  S.  vs.  Schallinger, 
230  Fed.  290. 

§  42i.  Error — Not  Assigned. — In  criminal  cases  Courts 
are  not  inclined  to  be  as  exacting  with  reference  to  the 
specific  character  of  the  objection  made,  as  in  civil  cases. 


126  Federal  Criminal  Law  Procedure, 

They  will,  in  the  exercise  of  a  sound  discretion,  some- 
times notice  error  in  the  trial  of  a  criminal  case,  although 
the  question  was  not  properly  raised  at  the  trial  by  ob- 
jection and  exception.  Crawford  vs.  U.  S.,  212  U.  S., 
183;  "Wiborg  vs.  U.  S.  163;  U.  S.  632;  Weems  vs.  U.  S.; 
217  U.  S.  349;  Savage  vs.  U.  S.;  213  Federal  31. 

Of  course  this  is  a  most  unsafe  practice  and  a  most 
unsafe  way  in  which  to  try  a  criminal  case.  The  courts 
are  not  called  upon  to  consider  objections  to  the  instruc- 
tions of  the  Court  or  objections  to  the  introduction  of 
testimony  unless  exceptions  were  properly  reserved  and 
are  properly  presented  for  consideration  of  the  Appel- 
late Court.  Savage  vs.  U.  S.,  213  Federal,  32;  Hickory 
vs.  U.  S.,  151  U.  S.,  303;  Stewart  vs.  Wyoming  Cattle  Co., 
128  U.  S.,  383;  Lewis  vs.  U.  S.,  146,  U.  S.  370. 

§  42ii.    Bill  of  Exceptions  and  Error. 

See  Sec.  27a.  27b.  and  42i. 

A  bill  of  exceptions  cannot  be  settled  after  the  term 
without  an  express  order  of  court  made  during  the  term 
or  by  understanding  with  opposing  counsel,  save  under 
very  extraordinary  circumstances,  Susquehanna  vs.  Cas- 
ualty, 247  Fed.  137;  Blisse  vs.  U.  S.  263  Fed.  961. 

That  counsel  of  both  government  and  defendant  call  the 
transcript  of  the  stenographer's  notes  a  bill  of  exceptions 
is  not  sufficient  to  make  it  such.  Fraina  vs.  U.  S.  255 
Fed.  28. 

The  court  will  look  at  a  radical  error  and  reverse 
though  such  error  was  not  properly  saved,  McNutt  vs. 
U.  S.  267  Fed.  670;  August  vs.  U.  S.*257  Fed.  388;  which 
cases  show  the  Act  of  Feb.  26,  1919,  which  amended  Sec. 
269  of  the  Judicial  Code  and  requires  courts  of  appeals 
to  look  at  all  the  record  and  render  judgment  without 
regard  to  technical  errors;  but  this  requirement  must 
not  be  construed  as  relieving  the  complaining  party  of 
showing  prejudicial  error,  Eich  vs.  U.  S.  271  Fed.  566; 
Rosen  vs.  U.  S.  271  Fed.  651. 

§  42j.  Continuance. — It  is  well  settled  that  the  ac- 
tion of  the  trial  Court  upon  an  application  for  a  contin- 
uance is  a  matter  of  discretion  not  subject  to  review,  un- 
less such  discretion  has  been  abused.     Hardy  vs.  U.  S.. 


Practice  Suggestions.  127 

186;  U.  S.  224;  Latham  vs.  U.  S.,  210  Federal,  159;  Isaacs 
vs.  U.  S.,  159,  U.  S.  487;  Goldsbuy  vs.  U.  S.,  160  U.  S.  70; 
Metropolitan  Street  Railway  vs.  Davis,  112  Federal,  634; 
Pacey  vs.  McKinney,  125  Federal,  679;  Dexter  vs.  Kellas, 
113  Federal  48. 

In  Youtsey  vs.  U.  S.,  97  Federal,  940,  it  was  held  that  an 
application  for  continuance  which  contains  also  a  show- 
ing, supported  by  affidavits  of  the  mental  weakness  of 
the  defendant  occasioned  by  epilepsy,  requires  the  Court 
to  try  the  issue  by  appropriate  proceedings. 

§  42jj.    Continuance  Continued. 

The  action  of  the  court  in  overruling  a  motion  for 
continuance  is  reviewable  only  for  an  abuse  of  discre- 
tion, continues  to  be  the  rule  of  the  later  decisions,  Spear 
vs.  U.  S.  246  Fed.  250;  Penn  vs.  Fanger,  231  Fed.  851; 
Moens  vs.  U.  S.  267  Fed.  317. 

§  42A-.  Extradition. — Under  the  Constitution  of  the 
United  States  one  who  commits  an  offense  in  one  State 
and  flees  to  another,  is  liable  to  be  extradited  and  the 
State  in  which  the  refugee  is  sought  must  respond  when 
application  is  made  to  its  chief  executive.  In  the  Fed- 
eral procedure,  however,  extradition  is  accomplished  by 
a  much  simpler  process  and  there  is  no  appeal  to  the 
Executive  of  the  State.  Defendants  are  removed  from 
one  state  to  another  or  from  one  district  to  another, 
rather,  as  the  case  may  be.  The  statute  authorizing  this 
procedure  is  old  Section  1014,  the  latter  part  of  which 
reads  as  follows,  "And  where  any  offender  or  witness  is 
committed  in  any  district  other  than  that  where  the  of- 
fence is  to  be  tried,  it  shall  be  the  duty  of  the  judge  of 
the  district  where  such  offender  or  witness  is  imprisoned, 
seasonably  to  issue,  and  of  the  marshal  to  execute,  a  war- 
rant for  his  removal  to  the  district  where  the  trial  is  to 
be  had." 

The  procedure  is  simply  that  the  prosecuting  officer 
for  the  district  where  the  defendant  is  apprehended,  pre- 
sents a  written  statement  of  such  apprehension,  includ- 
ing a  synopsis  of  the  defendant's  preliminary  hearing  be- 
fore a  United  States  Commissioner,  to  the  Court  and 
moves  that  the  Court  grant  the  warrant  directing  the 


128  Federal  Criminal,  Law  Procedure. 

marshal  to  make  the  removal.    See  also  Section  14,  ante. 

Questions  of  extradition,  however,  may  reach  the  Fed- 
eral Courts,  as  in  the  case  of  ex  parte  Thaw,  214  Federal, 
423,  where  the  Court  held  that  as  the  source  of  the  extra- 
dition power  of  the  states  is  Federal,  and  as  it  relates  to 
crime  only  and  contemplates  the  exercise  of  exceptional 
and  arbitrary  control  in  restraint  of  personal  liberty,  the 
Federal  constitution  and  Acts  of  congress  have  reserved 
to  the  Federal  Government,  and  imposed  upon  its  Courts, 
the  very  important  duty  of  seeing  that  the  power  is  ex- 
ercised upon  due  and  appropriate  process,  and  that  it 
shall  not  be  extended  to  pleas,  and  exercised  in  all  cases, 
not  clearly  intended  by  the  constitution.  See  also  209 
Federal,  954. 

In  the  case  of  Drew  vs.  Thaw,  U.  S.,  Supreme  Court, 
Oct.  Term,  1914,  it  was  held  that  extradition  may  not  be 
defeated  by  a  resort  to  an  habeas  corpus  writ. 

Section  1014,  by  the  Act  of  February  21, 1871,  16  Stats. 
L.  426,  is  made  applicable  to  the  District  of  Columbia.  IT. 
S.  vs.  Hyde,  132  Federal,  545. 

And  so  when  a  fugitive  has  been  discharged  wrong- 
fully, he  may  be  re-arrested.  Ex  parte  Scherer,  195  Fed- 
eral, 334.  Federal  Courts  may  take  jurisdiction  by  the 
habeas  corpus  route  to  prevent  an  illegal  extradition 
by  a  state  sheriff  under  certain  circumstances.  Sheriff 
vs.  Daily,  U.  S.  Supreme  Court,  decided  May  15,  1911. 

On  habeas  corpus  to  prevent  extradition  the  regularity 
of  the  proceedings  only  will  be  inquired  into.  Ex  parte 
Graham,  216  Federal,  813. 

In  extradition  matters  the  technicality  of  a  trial  is  not 
required.  Gluckman  vs.  Henkle,  U.  S.  Supreme  Court, 
May  29,  1911.  See  also  ex  parte  Charlton,  185  Federal, 
880.  A  general  extradition  order  is  not  liable  to  attack 
by  habeas  corpus.  McNamara  vs.  Henkle,  U.  S.  Supreme 
Court,  Oct.  Term,  1912,  decided  January  3,  1913.  Gov- 
ernor's warrant  is  sufficient  until  presumption  of  its 
legality  is  overthrown,  Eeed  vs.  U.  S.  224  Fed.  378. 

General  rules  governing  such  procedure  in  the  Fed- 
eral Courts  will  be  found  in  re  Zentner,  188  Federal,  344. 
An  exhibition  on  extradition  of  a  certified  copy  from  the 


Practice  Suggestions.  129 

Secretary  of  State  is  sufficient.     Ex  parte  Urzua,  188 
Federal,  541.    See  Section  322  post. 

§  42kk.     Extradition  Continued. 

See  Sees.  4  and  4a,  for  constitutional  provisions.  It  is 
only  on  a  charge  of  crime  that  extradition  may  be  re 
sorted  to  under  paragraph  2,  of  Art.  4,  of  the  constitution 
and  proceedings  before  a  Governor  will  be  accorded  a 
large  measure  of  conclusiveness,  Reed  vs.  U.  S.  224  Fed. 
378. 

A  jury  trial  will  not  be  granted  when  the  facts  are  not 
disputed  for  the  purpose  of  determining  the  defendant's 
presence  and  connection  with  the  crime,  Ex  parte  Crow- 
ley, 268  Fed.  1016;  and  the  indictment  will  not  be  ques- 
tioned, Hogan  vs.  O'Neil  41  Sup.  Ct.  Eep.  222. 

For  a  treatise  on  "indictment"  and  "fugitive"  see 
Ex  parte  Montgomery,  244  Fed.  967;  Ex  parte  Birdseye, 
244  Fed.  972. 

For  views  with  reference  to  extradition  to  a  foreign 
country  and  the  presumption  that  the  foreign  country 
will  try  only  for  the  extradicted  offenses  see  Grin  vs. 
Shine,  U.  S.  Sup.  Ct.  177  U.  S.  -47  L.  E.  130;  Bingham 
vs.  Bradley,  241  U.  S.  511. 

For  cases  bearing  upon  the  sufficiency  of  the  charge 
and  indictment  and  procedure  see  Reichman  vs.  Harris, 
252  Fed.  371;  Innes  vs.  Tobin,  240  U.  S.  127;  Sec.  5278 
Compiled  Revised  Statutes  of  the  United  States  1913. 

§  42/.  Judge — Disqualification  of. — Section  601  of  the 
Revised  Statutes  of  the  United  States,  United  States 
Compiled  Statutes  1901,  p.  484,  provides  that  if  the  Judge 
of  any  District  Court  is  in  any  way  concerned  in  interest 
in  any  suit  pending  therein,  or  has  been  of  counsel  for 
either  party,  it  shall  be  his  duty,  on  application  of  either 
party,  to  certify  the  case  to  another  Court.  Section  21 
of  the  Judiciary  Act  approved  March  3,  1911,  p.  27,  Hop- 
kins Judicial  Code,  provides  that,  whenever  a  party  to 
any  action  or  proceeding,  civil  or  criminal,  shall  make 
and  file  an  affidavit  that  the  Judge  before  whom  the  ac- 
tion  or  proceeding  is  to  be  tried  or  heard  has  a  personal 
bias  or  prejudice  either  against  him  or  in  favor  of .  any 
opposite  party  to  the  suit,  such  Judge  shall  proceed  no 

9 


130  Federal  Criminal  Law  Procedure. 

further  therein,  but  another  Judge  shall  be  designated 
in  the  manner  prescribed  in  the  Section  last  preceding, 
or  chosen  in  the  manner  prescribed  in  Section  23  to  hear 
such  matter.  Every  such  affidavit  shall  state  the  facts 
and  the  reasons  for  the  belief  that  such  bias  or  prejudice 
exists  and  shall  be  filed  not  less  than  ten  days  before 
the  beginning  of  the  term  of  Court,  or  good  cause  shall 
be  shown  for  the  failure  to  file  it  within  such  time.  No 
party  shall  be  entitled  in  any  case  to  file  more  than  one 
such  affidavit;  and  no  such  affidavit  shall  be  filed  unless 
accompanied  by  a  certificate  of  counsel  of  record  that 
such  affidavit  and  application  are  made  in  good  faith. 
The  same  proceedings  shall  be  had  when  the  presiding 
judge  shall  file  with  the  clerk  of  the  Court  a  certificate 
that  he  deems  himself  unable,  for  any  reason,  to  preside 
with  absolute  impartiality  in  the  pending  suit  or  action. 

The  Supreme  Court  of  the  United  States,  in  Glasgow 
vs.  Moyer,  225  U.  S.,  425,  refuses  in  an  habeas  corpus 
proceeding  to  pass  upon  the  question  as  to  whether  or 
not  an  affidavit  filed  under  this  Section  21,  could  be  filed 
after  the  case  had  been  tried. 

The  Court  of  Appeals  for  the  First  Circuit,  in  Kinney 
vs.  Plymouth  Rock  et  al.,  213  Federal,  449,  decided  that 
Section  21  quoted  above  did  not  apply  to  appellate  tribu- 
nals. The  affidavit,  in  order  to  be  effective  under  this  Sec- 
tion, must  state  the  facts  and  an  allegation  of  information 
and  belief  is  insufficient  and  ineffective.  Neither  will  a 
certificate  from  counsel  who  has  never  been  admitted  be- 
fore the  Court,  be  effective.  Ex  parte  Fairbank  Co.,  194 
Federal,  978.  District  Judge  Jones,  in  ex  parte  Fairbank, 
supra,  held  that  if  the  Section  is  to  be  construed  literally 
to  mean  that  the  mere  filing  of  an  affidavit  in  accordance 
therewith  is  sufficient  to  disqualify  the  Judge  without 
hearing  or  determination  of  whether  the  facts  stated 
are  true  or  show  disqualification,  then  and  in  that  event, 
in  his  opinion,  the  Section  would  be  unconstitutional  as 
depriving  the  Courts  of  judicial  power  and  vesting  the 
same  in  the  litigants  to  that  extent. 

It  is  entirely  possible  that  Congress  intended  that  if, 
in  the  mind  of  the  litigant,  the  facts  existed  which  would 


Practice  Suggestions.  131 

disqualify  the  Court,  that  it  were  better  that  some  other 
Judge  should  sit  than  leave  the  impression  in  the  honest 
litigants'  mind  that  his  cause  had  been  determined  by 
a  prejudiced  or  biased  tribunal,  and  while  the  Constitu- 
tion of  the  United  States  places  judicial  power  exclu- 
sively in  the  Courts,  yet  the  hearing  of  a  law  suit  before 
one  court  or  another  court  is  a  matter  of  venue  and  is, 
in  more  than  a  restricted  sense,  the  right  and  liberty  of 
the  litigant  to  choose. 

In  construing  the  meaning  of  Section  601,  cited  above, 
in  an  opinion  rendered  January  2,  1912,  which  was  be- 
fore Section  21  of  the  new  Code  went  into  effect,  in  Ep- 
stein vs.  United  States,  196  Federal,  354,  the  Circuit 
Court  of  Appeals  for  the  Seventh  Circuit  held  that  where 
the  defendant  was  brought  to  trial  before  a  Judge  who 
had  previously  remarked,  in  the  presence  of  the  accused : 
4 'This  is  a  nasty  piece  of  business.  This  estate  has  been 
looted  by  someone."  And  then  turned  to  the  officer  of 
the  Court  and  directed  that  he  use  what  was  left  of  the 
estate,  even  to  the  last  penny,  to  investigate  the  matter, 
and  if  anyone,  whoever  he  might  be,  had  committed  any 
act  that  could  be  reached  and  punished  under  the  law, 
to  institute  proceedings  against  him,  had  merely  per- 
formed his  duty  to  direct  an  official  investigation  of  what 
appeared  to  be  a  criminal  offense,  and  did  not  there- 
fore become  disqualified  to  try  the  accused  therefore, 
as  being  either  "concerned  in  interest"  or  "of  counsel" 
for  the  prosecution. 

§  42  w.  Nolo  Contendere. — This  plea  is  the  defend-N 
ant's  declaration  in  Court  that  he  will  not  contend  with 
prosecuting  power.  It  is  pleadable  only  by  leave  of  the 
Court,  and  in  light  misdemeanors.  The  difference  be- 
tween it  and  guilty  appears  simply  to  be  that  while  the 
latter  is  a  confession  binding  the  defendant  in  other 
proceedings,  the  former  has  no  effect  beyond  the  partic- 
ular case.  Bishop's  New  Criminal  Procedure,  2nd  Vol., 
p.  624.  It  is  allowable  only  under  leave  and  acceptance 
by  the  Court  and  when  accepted  the  Court  becomes  an 
implied  confession  of  guilt  and,  for  the  purposes  of  the 
case  only,  equivalent  to  a  plea  of  guilty,  but  distinguish- 


132  Federal,  Criminal  Law  Procedure. 

able  from  such  plea  in  that  it  cannot  be  used  against  the 
defendant  as  an  admission  in  any  civil  suit  for  the  same 
act.    Tucker  vs.  United  States,  196  Federal,  260. 

Since  the  Common  Law  rule  governs  in  the  Federal 
Courts  such  a  Court,  in  order  to  entertain  a  plea  of  nolo 
contendere  must  find  the  case  within  the  class  of  misde- 
meanors, for  which  punishment  may_  be  imposed  by_fine_ 
alone,  although  the  offense  may  still  be  punishable  by 
imprisonment  at  the  discretion  of  the  Court,  either  as  an 
alternative  of  fine,  or  in  addition  thereto,  or  to  enforce 
payment  of  the  fine.  Such  a  plea  cannot  be  accepted  for 
cases  of  felony  requiring  infamous  punishment,  nor  in 
cases  of  misdemeanors  for  which  the  punishment  must 
be  imprisonment.  When  an  indictment  contains  counts 
charging  offenses  for  which  the  statute  requires  the  im- 
position of  punishment  by  both  fine  and  imprisonment 
and  other  counts  for  offenses  which  may  be  punishment 
by  fine  alone,  the  Court  has  authority  to  allow  a  tendered 
plea  of  nolo  contendere,  but  in  such  case  the  further  pro- 
ceedings and  punishment  must  be  confined  to  the  latter 
class  of  counts,  to  which  alone  the  plea  is  applicable.  Tuc- 
ker vs.  U.  S.,  196  Federal,  260.  When  plea  of  nolo  con- 
tendere is  tendered  to  an  indictment  containing  counts, 
some  of  which  charged  offenses  which  required  punish- 
ment by  both  fine  and  imprisonment,  and  also  other 
counts  upon  which  a  fine  alone  might  be  imposed,  a  Court 
cannot  hear  evidence,  and  make  a  finding  of  guilty  as 
charged,  and  sentence  the  defendant  to  both  fine  and  im- 
prisonment, because  such  action  is  inconsistent  with  the 
acceptance  of  such  a  plea  and  would  be  a  judgment  of 
conviction  within  a  jury  trial  and  therefore  unlawful  and 
unconstitutional  and  void.  Tucker  vs.  U.  S.,  196  Federal, 
260. 

After  a  plea  of  nolo  contendere  it  is  not  necessarv  that 
the  Court  should  adjudge  that  the  party  was  guilty  be- 
cause that  follows  by  necessary  legal  inference  from  the 
implied  confession.  State  vs.  Herlihy,  66  Atl.,  643;  102 
Me.,  310. 

Such  a  plea  when  accepted  by  the  Court,  cannot  be 
withdrawn  and  a  plea  of  not  guilty  entered,  accept  by 


Practice  Suggestions.  133 

leave  of  the  Court.  State  vs.  Siddall,  68  Atl.,  634;  103 
Me.,  144.  It  seems  improbable  that  a  Court,  after  having 
accepted  such  a  plea,  could  thereafter  compel  the  defend- 
ant to  withdraw  it,  nor  could  the  Court  fail  to  act  upon 
such  a  plea  after  the  same  were  tendered  to  and  accepted 
by  him. 

§  42rc.  New  Trial.— Section  726  of  the  Eevised  Stat- 
utes gives  the  United  States  Courts  the  power  to  grant 
new  trials  in  cases  where  there  has  been  a  trial  by  jury, 
for  reasons  for' which  new  trials  have  been  usually  grant- 
ed in  Courts  of  law. 

Motions  for  new  trials  are  addressed  to  the  discretion 
of  the  Court  in  the  Federal  jurisdiction  and  are  not  re- 
viewable in  an  Appellate  Court.  Terre  Haute  vs.  Stru- 
ble,  109  U.  S.,  381;  Berry  vs.  Seawall,  65  Federal,  744; 
Alexander  vs.  U.  S.,  57  Federal,  830;  Jacksonville  vs. 
Smith,  78  Federal,  295;  Cape  Fear,  etc.,  vs.  Pearsall,  90 
Federal,  437;  Nininger  vs.  Cowan,  101  Federal,  789;  U. 
S.  vs.  Rio  Grande  etc.  184,  U.  S.,  423;  Carlisle  vs.  U.  S., 
194,  Federal  830.  Pocahontas  vs.  U.  S.,  218  Federal, 
782,  C.  C.  A.    Gladden  vs.  Gabbert,  219  Federal,  855. 

It  is  well  settled  that  a  ruling  of  the  trial  Court  deny- 
ing a  new  trial  cannot  be  assigned  as  error.  Lueders 
vs.  U.  S.,  210  Federal,  421;  Moore  vs.  U.  S.,  150  U.  S., 
57;  Holder  vs.  U.  S.,  150,  U.  S.  91;  Blitz  vs.  U.  S.,  153 
U.  S.,  308;  Wheeler  vs.  U.  S.  159,  U.  S.  523;  Clune  vs.  U. 
S.  159,  U.  S.  590;  Corenman  vs.  U.  S.,  188  Federal,  424. 

It  is  well  settled  that  the  granting  or  refusing  a  new 
trial  is  a  matter  within  the  sound  discretion  of  the  trial 
Court  and  that  its  action  in  the  exercise  of  such  discre- 
tion cannot  be  reviewed.  It  is  also  settled  that  if  the 
trial  Court  refuses  to  exercise  or  abuses  this  discretion, 
its  judgment  will  be  reversed  because  thereof.  Felton 
vs.  Spiro,  78  Federal,  576;  James  vs.  Evans,  149  Federal, 
136;  Mattox  vs.  U.  S.  146,  U.  S.  140;  Dwyer  vs.  U.  S., 
170  Federal,  160. 

An  attempt  was  made  to  bring  the  case  of  Higgings  vs. 
U.  S.,  185  Federal,  710,  within  the  last  paragraph  of  the 
above  rule,  but  the  lower  Court,  in  acting  on  the  motion 
for  new  trial,  did  not  refuse  to  exercise,  or  abuse  its  dis- 


134  Federal  Criminal  Law  Procedure. 

cretion.  It  overruled  the  motion  because  in  the  exercise 
of  its  discretion  it  did  not  believe  that  it  was  entitled  to 
a  new  trial. 

§  42nn.    New  Trial  Continued. 

Even  though  the  application  for  a  new  trial  is  based 
on  the  allegation  that  new  evidence  has  been  discovered 
it  does  not  chance  the  discretionary  rule,  Bates  vs.  U.  S. 
269  Fed.  563. 

Judicial  discretion  does  not  mean  an  optional  ac- 
tion. A  trial  court  has  discretion  in  passing  upon  a  mo- 
tion for  a  new  trial  but  an  abuse  of  such  discretion  would 
be  noticed  by  the  appellate  court.  Thus  the  action  of 
the  trial  court  in  committing  a  defendant's  witness  for 
contempt  in  the  presence  of  the  jury  will  furnish  such 
basis  to  the  appellate  court  to  order  a  new  trial,  Ruther- 
ford vs.  U.  S.  258  Fed.  855. 

See  also  Lee  Dock  vs.  U.  S.  224  Fed.  431,  with  refer- 
ence to  the  discretionary  power.  In  Andrews  vs.  U.  S. 
224  Fed.  418,  it  was  held  that  the  same  discretion  vests 
in  the  trial  court  with  reference  to  which  on  a  motion 
in  an  arrest  of  judgment. 

§  42o.  Limitations. — Sections  1043  to  1048,  inclusive, 
of  the  1878  statutes  contain  such  general  limitations  as 
Congress  has  seen  fit  to  make  against  the  prosecution  of 
Federal  offenses,  with  the  exception,  of  course,  of  such 
limitations  as  may  be  contained  in  many  of  the  criminal 
statutes  themselves.  Where  a  statute,  therefore,  does  not 
provide  a  limit  within  which  prosecution  thereunder 
shall  be  had,  the  general  statutes  here  mentioned  apply. 

Section  1043  provides  that  no  person  shall  be  prosecut- 
ed, tried  or  punished  for  treason  or  other  capital  offense, 
wilful  murder  excepted,  unless  the  indictment  is  found 
within  three  years  next  after  such  treason  or  capital  of- 
fense is  done  or  committed.  Section  1045  provides  that 
the  statute  of  limitations  should  not  apply  to  any  person 
fleeing  from  justice  and  in  Section  1046  the  limitation 
for  the  prosecution  of  those  violating  the  revenue  laws 
was  fixed  at  five  years,  and  provided  that  no  one  should 
be  prosecuted,  tried  or  punished  for  any  crime  arising 
under  the  revenue  laws  or  the  slave  trade  laws  of  the 


Practice  Suggestions.  135 

United  States  unless  the  indictment  is  found,  or  the  con- 
viction is  instituted  within  five  years  next  after  the  com- 
mitting of  such  crime.  Section  1048  is  not  now  interest- 
ing for  the  reason  that  it  related  to  matters  arising  dur- 
ing the  Civil  War. 

In  United  States  vs.  Green,  146  Federal,  804,  the  Court 
construed  the  fugitive  exception  to  mean  absence  from 
the  district  in  which  the  offense  was  committed.  See 
also  154  Federal,  402,  as  to  pleading. 

Judge  Pardee,  speaking  for  the  Circuit  Court  of  Ap- 
peals for  the  Fifth  Circuit  in  Carter  vs.  New  Orleans, 
etc.,  143  Federal,  99,  held  that  Section  1047,  which  pro- 
vided a  period  of  five  years  for  the  commencement  of 
suits  for  penalties,  forfeitures,  etc.,  accruing  under  the 
laws  of  the  United  States,  would  govern  rather  than  a 
state  statute  in  a  suit  brought  for  a  Federal  penalty  un- 
der Section  2  and  8  of  the  Act  regulating  commerce,  that 
is  penalty  for  giving  special  rates,  rebates,  etc. 

On  July  4,  1884,  23  Stats.  L.  122,  1st  Vol.  Supp.  463, 
Congress  changed  the  statute  of  limitations  as  to  revenue 
laws  of  the  United  States,  and  provided  that  no  prosecu- 
tion should  be  brought  nor  any  person  tried  or  punished 
for  any  of  the  offenses  under  the  internal  revenue  laws 
unless  an  indictment  is  found  or  the  information  institut- 
ed within  three  years  next  after  the  commission  of  the 
offense,  in  all  cases  where  the  penalty  prescribed  may  be 
imprisonment  in  the  penitentiary,  and  within  two  years 
in  all  other  cases,  provided  that  the  time  during  which 
the  person  committing  the  offense  is  absent  from  the  dis- 
trict shall  not  be  taken  as  any  part  of  the  time  limited 
by  law  for  the  commencement  of  such  proceedings,  and 
further  provided  that  where  a  complaint  shall  be  in- 
stituted before  a  Commissioner  of  the  United  States 
within  the  period  above  limited,  the  time  shall  be  extend- 
ed until  the  discharge  of  the  grand  jury  at  its  next  ses- 
sion within  the  district,  and  provided  further  that  the  act 
shall  not  apply  to  offenses  committed  by  officers  of  the 
United  States. 

It  must  be  borne  in  mind  in  this  connection  that  the 
words  "indictment  found  or  information  instituted"  are 


136  Federal  Criminal  Law  Procedure. 

not  satisfied  by  the  filing  of  an  affidavit  before  a  Com- 
missioner. Such  action  by  the  government  will  not  stop 
the  running  of  the  statute.  Matter  of  Lacey,  1894,  Okla., 
4.  A  nolle  prosed  indictment  will  not  stop  the  run- 
ning of  the  statute.  United  States  vs.  Ballard,  3  McLean, 
U.  S.  469,  2nd  Vol.  Fed.  Stats.  Ann.  p.  358.  Limitation 
may  be  raised  by  demurrer,  U.  S.  vs.  Watkins,  3rd 
Cranch.  C.  441;  U.  S.  vs.  Shorey,  9  Internal  Revenue,  302, 
27  Fed.  Cas.  No.  16281.  See  also  p.  349,  Vol.  I.  Gould  & 
Tucker  Notes.  For  construction  of  the  Act  of  Federal 
Limitations,  see  91  U.  S.,  566.    But  see  Revenue  Statute. 

§  42oo.  Limitations  Continued. — In  a  suit  for  land  by 
the  United  States  a  statute  of  limitation  will  not  bind  the 
United  States  unless  Congress  has  clearly  manifested 
that  it  should  be  bounded  thereby,  U.  S.  vs.  Whited,  246 
U.  S.  552. 

By  the  Act  of  July  5,  1884,  shown  at  page  806,  Vol.  3, 
Federal  Statutes  Annotated,  there  was  a  provision  limit- 
ing jDrosecutions  under  internal  revenue  laws  unless  the 
indictment  was  found  or  the  information  instituted  with- 
in three  years  last  after  the  commission  of  the  offense 
where  the  penalty  was  imprisonment  in  the  penitentiary 
and  two  years  in  all  other  cases.  With  provisions  for 
absence  from  the  district  and  for  stopping  the  ruling  of 
the  limit  while  a  complaint  was  pending  before  a  commis- 
sioner until  the  discharge  of  the  grand  jury  at  the  next 
session  of  court  and  with  a  further  provision  that  such 
limit  does  not  apply  to  offenses  committed  by  officers  of 
the  United  States. 

See  also  Taylor  vs.  U.  S.,  45  Fed.  531,  reversed  by  the 
Supreme  Court  in  147  U.  S.  695;  Mackins  vs.  U.  S.,  117 
U.  S.  355;  U.  S.  vs.  Norton,  91  U.  S.  250;  see  also  Sec. 
344  Penal  Code  Appendix. 

Likewise  many  statutes  have  their  special  provisions 
of  limitation  such  as  bankruptcy,  revenue,  the  Volstead 
Act,  narcotic  law. 

§  42p.  Sherman  Law— Trust  Statute. — Section  1,  2 
and  3  of  the  Act  of  July  2,  1890,  denounces  monopolies 
and  combinations  in  restraint  of  trade  and  provides  crim- 
inal punishments  for  those  found  guilty  of  such  offenses. 


Practice  Suggestions.  L37 

Section  1  provides  that  every  contract,  combination  in 
the  form  of  trust  or  otherwise,  or  conspiracy  in  restraint 
of  trade  or  commerce  among  the  several  states,  or  with 
foreign  nations,  is  declared  to  be  illegal  and  the  violation 
thereof  is  declared  to  be  a  misdemeanor,  punishable  by 
a  fine  not  exceeding  $5000,  or  by  imprisonment  not  ex- 
ceeding one  year,  or  by  both  said  punishments  at  the 
discretion  of  the  court. 

Section  2  provides,  "Every  person  who  shall  monopo- 
lize or  attempt  to  monopolize  or  combine  or  conspire  with 
any  other  person  or  persons  to  monopolize  any  part  of 
the  trade  or  commerce  among  the  several  states,  or  with 
foreign  nations,  shall  be  deemed  guilty  of  a  misdemeanor 
and  on  conviction  thereof  shall  be  punished  as  provided 
in  the  first  section." 

Section  3  declares  every  contract,  combination  in  form 
of  trust  or  otherwise,  or  conspiracy  in  restraint  of  trade 
or  commerce,  in  any  territory  of  the  United  States  or  of 
the  District  of  Columbia,  or  in  restraint  of  trade  or  com- 
merce between  any  such  territory  and  another,  or  be- 
tween any  such  territory  or  territories,  and  any  state  or 
states  or  the  District  of  Columbia,  or  with  foreign  nations, 
is  declared  illegal,  and  a  punishment  like  that  prescribed 
in  the  first  section,  is  provided  for.  Page  3200,  Vol.  3, 
U.  S.  Compiled  Statutes  1901;  26  Stats.  L.  209.  The  Act 
was  amended  by  the  Act  of  June  29, 1906,  34  Stats.  L.  504, 
and  was  later  amended  in  minor  as  shown  in  Section  1 
of  the  Act  of  October  15,  1914,  7  Fed.  Stats.  Ann.  336, 
346,  347,  and  p.  402,  1914,  Supp.  Fed.  Stats.  Ann. 

In  the  Act  of  October  15,  1914,  it  is  provided  in  Section 
14,  thereof  that  whenever  accorporation  shall  violate  any 
of  the  penal  provisions  of  the  anti-trust  laws,  such  viola- 
tion shall  be  deemed  to  be  also  that  of  the  individual  di- 
rectors, officers,  or  agent  of  such  corporation  who  shall 
have  authorized,  ordered  or  done  any  of  the  Acts  con- 
stituting, in  whole  or  in  part,  such  violation,  and  such 
violation  shall  be  deemed  a  misdemeanor  punishable  to 
the  same  extent  as  provided  in  Section  1  heretofore  no- 
ticed. 


138  Federal  Criminal  Law  Procedure. 

The  Act  was  further  aided  by  the  Act  of  September  26, 
1914,  Section  8836-A,  United  States  Compiled  Statutes, 
by  the  establishment  of  a  Federal  trade  commission.  But 
the  latter  Act  contains  no  additional  criminal  offense, 
save  and  except  for  failure  to  testify  or  to  produce  docu- 
mentary evidence  and  for  making  false  entries  in  reports 
or  accounts  of  corporations,  or  for  removal  or  mutilation 
of  documents,  and  also  for  certain  contempts.  The  stat- 
ute is  constitutional  and  reaches  corporations.  New  York 
Railroad  Co.  vs.  U.  S.;  212  U.  S.  481.  It  also  reaches 
joint  stock  associations  and  partnerships.  U.  S.  vs. 
Adams  Express  Co.,  229  U.  S.,  381.  Burden  is  in  the  Gov- 
ernment.   U.  S.  vs.  American,  275  F.  939. 

Prosecutions  may  be  successfully  had  under  the  Act 
for  cornering  a  commodity.  That  the  immediate  result 
of  the  corner  advances  rather  than  depresses  the  price 
of  the  commodity  is  no  defense.  U.  S.  vs.  Patten,  226  U. 
S.,  525,  which  reverses  U.  S.  vs.  Patten,  187  Federal,  664. 
An  overt  act  in  furtherance  of  the  conspiracy  is  unneces- 
sary. U.  S.  vs.  Patten,  187  Federal,  664.  The  contin- 
uance of  a  monopoly  after  the  completion  of  the  conspir- 
acy, is  itself  an  offense  under  this  Act.  U.  S.  vs.  Patter- 
son, 201  Federal,  698,  in  which  case  will  be  found  the  cash 
register  nidictment  in  full.  This  cause  was  reversed  by 
the  Circuit  Court  of  Appeals. 

A  mere  purchase  of  competing  plants  does  not  neces- 
sarily constitute  a  monopoly  within  the  meaning  of  the 
statute.  U.  S.  vs.  Keystone  Watch  Company,  218  Fed- 
eral, 502.  A  combination  may  be  in  violation  of  this 
statute  even  though  the  monopoly  may  not  have  been 
attempted  to  any  harmful  extent,  but  is  potential  only, 
and  an  elimination  of  competition  between  competing 
concerns,  if  illegal,  is  equally  so,  whether  effected  by  an 
agreement  or  by  a  consolidation.  U.  S.  vs.  International 
Harvester  Co.,  214  Federal,  987. 

There  must  not  only  be  a  restraint  of  trade,  but  an 
undue  restraint,  and  to  make  a  restraint  unreasonable  it 
must  appear  either  that  the  normal  volume  of  interstate 
trade  has  been  interfered  with  by  artificial  agencies  af- 
fecting to  a  substantial  degree  and  to  the  disadvantage 


Practice  Suggestions.  139 

of  the  public  the  price  or  supply  of  the  commodity,  or 
that  there  has  been  a  direct  and  intentional  interference 
with  the  transportation  of  commodities  in  interstate  com- 
merce. Thus  a  purchase  of  an  interstate  milk  business  to 
the  extent  that  the  purchasers  own  86  per  cent  of  the 
business,  are  not  merely  unreasonable  because  of  such 
purchase,  but  such  question  of  unreasonableness  was  a 
question  for  the  jury.  U.  S.  vs.  Whiting,  212  Federal, 
467.  The  Act  should  be  construed  in  the  light  of  reason, 
and  as  so  construed  it  prohibits  all  contracts  and  com- 
binations which  amount  to  an  unreasonable  or  undue  re- 
straint of  trade  in  interstate  commerce.  Standard  Oil 
Co.  vs.  U.  S.,  221  U.  S.,  1. 

A  contract  to  strangle  a  threatened  competition  by 
preventing  the  construction  of  an  immediately  projected 
line  of  railway,  which  if  constructed  would  naturally  and 
substantially  compete  with  an  existing  line  for  interstate 
traffic,  is  one  in  restraint  of  interstate  commerce  and  in 
violation  of  the  Act.  U.  S.  vs.  Union  Pacific,  188  Federal. 
102. 

On  the  other  hand  a  combination  cannot  escape  the 
condemnation  of  the  Act  merely  because  of  the  form  it 
assumes  and  a  single  corporation,  if  it  arbitrarily  uses 
its  power  to  force  weaker  competitors  out  of  business  or 
to  coerce  them  into  a  sale  to  or  union  with  such  corpora- 
tion, puts  a  restraint  or  interstate  commerce  and  in  a 
sense  violates  the  Act.  U.  S.  vs.  DuPont,  188  Federal, 
127.  An  indictment  which  charges  that  three  distinct 
packing  concerns,  each  one  of  whom  was  authorized  to 
act  for  the  others,  and  that  such  group  acted  for  the  three 
concerns,  is  sufficiently  specific.  U.  S.  vs.  Swift,  186 
Federal,  1002;   188  Federal,  92. 

The  test  of  the  legality  of  a  combination  under  this  Act 
is  its  necessary  effect  upon  competition;  if  its  necessary 
effect  is  only  incidentally  or  indirectly  to  restrict  the 
competition  while  its  chief  result  is  to  foster  the  trade 
and  increase  the  business  of  those  who  make  and  operate 
it,  it  does  not  violate  the  law.  United  States  vs.  Standard 
Oil  Co.,  173  Federal,  177.    U.  S.  vs.  McAndrews  et  ah. 


140  Federal  Criminal  Law  Procedure. 

149  Federal,  823.  "Open  Price  Plan"  not  violation.  U. 
S.  vs.  American,  275  F.  939. 

In  the  Standard  Oil  case  by  the  Supreme  Court  of  the 
United  States,  221  U.  S.  p.  1,  the  old  cases  of  U.  S.  vs. 
Trans-Missouri  Freight  Association,  166  U.  S.  290,  and 
U.  S.  vs.  Joint  Traffic  Association,  171  U.  S.  505,  were 
limited  and  qualified  because  they  did  not  permit  an  in- 
terpretation of  each  contract  and  agreement  by  the  stand- 
ard of  reason.  The  Standard  Oil  case  was  followed  by 
the  Supreme  Court  in  United  States  vs.  American  To- 
bacco Company,  221  U.  S.,  106. 

42pp.  Monopoly — Sherman  Act — Clayton  Act. — For 
requisites  of  an  information  see  U.  S.  vs.  Wells,  225  Fed. 
320;  U.  S.  vs.  Boumert,  179  Fed.  735;  U.  S.  vs.  Cowell, 
243  Fed.  730. 

A  rule  of  business  which  appeals  to  the  reason  as  being 
legitimate  competition  is  not  a  violation  of  the  act,  IT.  S. 
vs.  Steel  Co.,  40  Sup.  Ct.  Rep.  293. 

A  conspiracy  to  violate  the  Sherman  law  is  complete 
though  no  overt  act  was  committed,  U.  S.  vs.  Rintelen, 
233  Fed.  793;   see  also  U.  S.  vs.  Bopp,  237  Fed.  283. 

A  peaceful  strike  is  not  a  violation  since  the  Clayton 
Act  takes  agreements  to  strike  out  of  Sec.  1,  of  the  Sher- 
man law,  U.  S.  vs.  Norris,  255  Fed.  423. 

A  monopoly  agreement  may  be  inferred  from  a  course 
of  dealing,  to  fix  prices,  Frey  vs.  Cudahay,  41  Sup.  Ct. 
Rep.  451. 

Agency  is  not  a  sale  under  the  Clayton  Act,  Curtis  Pub- 
lishing Co.  vs.  Federal  Trade  Com.,  270  Fed.  881. 

It  is  not  in  violation  of  a  monopoly  act  for  a  manufac- 
turer to  refuse  to  sell  to  any  who  will  not  agree  to  main- 
tain prices,  etc.,  U.  S.  vs.  Colgate,  253  Fed.  522. 

Combination  of  cement  plants  as  formed  was  a  viola- 
tion, U.  S.  vs.  Cowell,  243  Fed.  730;  as  was  also  a  com- 
bination of  retail  lumber  dealers  which  used  "customers 
lists,"  U.  S.  vs.  Hollis,  246  Fed.  611. 

A  sale  contract  such  as  is  exhibited  in  Standard  Fash- 
ion Magazine,  254  Fed.  493,  is  a  violation. 

A  trust  which  restricts  sale  of  territory  is  a  violation 
of  the  Texas  Statutes  which  is  broader  than  the  National 


Practice  Suggestions.  141 

Statutes,  but  see  discussion  of  Kissel  vs.  Walker,  270 
Fed.  492. 

An  indictment  under  this  section  must  be  clear  as  such 
clearness  is  denned  in  U.  S.  vs.  Colgate,  250  U.  S.  300. 

The  unlawful  agreement  is  the  essence  of  the  offense 
and  it  would  not  be  right  to  hold  unlawful  the  acts  of 
persons  who  being  in  the  same  business  exchange  views 
and  in  good  faith  act  the  same  way,  U.  S.  vs.  Piowaty, 
251  Fed.  375. 

See  U.  S.  vs.  King,  229  Fed.  275,  for  an  indictment  for 
listing  and  black  listing. 

A  corporation  which  was  itself  lawful  would  not  there- 
by become  obnoxious  to  the  Sherman  Act  by  the  appoint- 
ment of  an  exclusive  selling  agent,  American  Slate  Co. 
vs.  O'Halloran,  229  Fed.  77. 

See  also  for  strikes,  boycotts  and  injunction,  Duplex 
vs.  Deering,  252  Fed.  722. 

For  a  discussion  of  the  preservation  of  the  monopolies, 
rights  and  the  patent  and  trade  restrictions,  see  U.  S.  vs. 
United  Shoe  Company,  264  Fed.  138. 

§  42-q.  Verdict — Motion  to  Direct. — An  exception  to 
a  refusal  to  direct  a  verdict  at  the  close  of  plaintiff's 
case  is  waived  if  defendant  thereafter  proceeds  to  be  put 
in  proof  and  the  strength  of  plaintiff's  case  must  then 
be  tested  upon  a  new  motion  to  direct  a  verdict  after  both 
sides  have  rested  on  an  examination  of  the  entire  record 
made.  Collins  vs.  U.  S.,  219  Federal,  671.  Leyer  vs.  U. 
S.,  183  Federal,  102.  When  a  motion  to  direct  a- verdict 
is  not  renewed  at  the  conclusion  of  the  defendant's  tes- 
timony, the  objection  to  the  failure  of  the  Court  to  grant 
the  motion  to  direct,  is  waived.  Gould  vs.  U.  S.,  209 
Federal,  730.    See  Sections  16b  and  25a. 

A  Federal  Court  will  not  review  the  verdict  or  the  find- 
ing of  facts  by  a  jury  in  the  absence  of  a  request  to  the 
trial  Court  to  instruct  them  in  whose  favor  to  find,  on  the 
ground  that  evidence  is  so  conclusive  that  no  other  ver- 
dict can  be  sustained.  Thompkins  vs.  M.  K.  &  T.,  211 
Federal,  391. 

Coercing  of. — It  is  error  for  a  court,  after  ascertaining 
how  a  jury  stands,  to  charge  them  that  the  case  should  be 


142  Federal  Criminal  Law  Procedure. 

finally  disposed  of  and  that  it  is  the  second  trial  and  that 
there  is  no  reason  to  believe  that  a  more  intelligent  or 
honest  jury  more  likely  to  arrive  at  a  verdict  would  be 
drawn  on  another  trial  and  that  justice  demanded  that 
the  case  be  brought  to  an  end;  that  the  expense  of  trials 
is  great  and  that  the  government  has  a  right  to  a  verdict 
without  further  expenditure  of  time  and  money  and  de- 
fendants, if  guilty,  have  a  right  to  have  that  fact  deter- 
mined before  they  are  bankrupt,  and  if  innocent  a  right 
to  be  acquitted  before  their  means  are  exhausted.  Peter- 
son vs.  U.  S.,  213  Federal,  920.  Holding  jury  after  they 
say  they  cannot  agree  must  be  objected  to  by  defendant 
to  be  available  in  error.  Campbell  vs.  U.  S.,  221  Federal, 
186. 

In  Suslak  vs.  U.  S.,  213  Federal,  913,  the  Circuit  Court 
of  Appeals  for  the  Ninth  Circuit,  speaking  through  Judge 
Dietriech,  who  also  spoke  for  that  same  Court  in  the 
Peterson  case  just  above  cited,  held  that  it  was  not  co- 
ercing a  verdict  for  the  trial  Court  to  tell  them  that  the 
case  was  important  and  costly  both  to  the  Government 
and  to  the  defendants,  and  that  the  jury  must  remember 
that  the  witnesses  were  likely  to  disappear  and  could  not 
be  had  at  another  trial  and  that  they  should  attempt  to 
agree  on  honest  convictions;  and  though  they  had  the 
power  under  the  law  to  stand  out  for  acquittal  or  convic- 
tion, no  juror  should  do  so  arbitrarily  but  should  listen  to 
the  arguments  of  the  other  jurors  and  come  to  an  under- 
standing if  he  could,  and  be  convinced  by  their  argument ; 
that  it  was  wrong  to  convict  as  well  as  to  acquit  a  man 
on  an  arbtrary  stand  taken  by  a  juror,  and  that  they  must 
not  consider  the  penalty  in  the  case  whatever.  The  lan- 
guage, however,  was  said  to  be  as  strong  as  should  ever 
be  used  in  impressing  upon  a  jury  their  duty.  See  also 
Allis  vs.  U.  S.,  155  U.  S.,  117;  People  vs.  Miles,  143  CaL, 
635;  Jordan  vs.  State,  30  S..W.,  445. 

42qq.  Verdict — Motion  to  Direct — Coercing  Continu- 
ed.—See  Sees.  16, 16b,  25,  25a,  31,  429,  535. 

A  motion  to  direct  a  verdict,  at  the  close  of  the  govern- 
ment's evidence,  is  waived  by  thereafter  introducing  evi- 


Practice  Suggestions.  143 

dence,  Robins  vs.  U.  S.,  262  Fed.  126;   Grandi  vs.  U.  S., 
262  Fed.  123. 

A  motion  to  direct  may  be  made  after  all  of  the  evi- 
dence is  in,  Grandi  vs.  U.  S.,  262  Fed.  123,  but  unless  this 
procedure  is  taken  the  original  motion  is  waived  by  the 
introduction  of  testimony,  Youngblood  vs.  U.  S.,  266  Fed. 
795. 

For  the  practice  see  Isabell  vs.  U.  S.,  227  Fed.  788; 
U.  S.  vs.  De  Bolt,  253  Fed.  78. 

The  court  has  no  right  to  tell  the  jury,  "the  trial  is 
costly  and  that  he  would  hold  them  until  Saturday  night 
to  get  a  verdict,"  Hunter  vs.  Hunter,  187  S.  W.  1049. 

§  42r.  Writ  of  Error — Supersedeas. — Writs  of  error 
are  not  exactly  a  right  of  the  convicted  but  are  granted  in 
all  cases  where  assignments  of  error  are  filed  and  proper 
application  made  therefor.  Whether  the  judgment  shall 
be  superseded  is  in  the  sound  discretion  of  the  Court 
granting  the  writ  or  of  some  other  Court  that  under  the 
law  may  take  cognizance  thereof.  Judge  Speer  in  the 
case  of  U.  S.  vs.  Gibson,  188  Federal,  396,  refused  a  super- 
sedeas and  ordered  the  prisoners  to  the  penitentiary. 
The  facts,  however,  in  support  of  that  procedure  hardly 
appeal  to  the  profession  for  the  reason  that  if  proper 
assignments  of  error  had  been  filed  and  a  writ  of  error  in 
good  faith  perfected,  it  hardly  seems  right  that  the  pun- 
ishment should  be  begun  until  the  guilt  has  been  finally 
determined.  It  is  in  the  power  of  the  Court  to  fix  a  com- 
mensurate bond  pending  such  reivew  and  if  a  trial  Court 
should  arbitrarily  refuse  a  supersedeas,  application  should 
be  made  to  the  Court  of  Appeals  for  the  same  circuit  or 
one  of  the  Judges  thereof,  and  unless  the  prosecution 
could  show  to  the  Court  that  the  record  of  the  convicted 
warranted  a  presumption  that  he  would  not  abide  the 
judgment  of  the  Appellate  Court,  a  supersedeas  should 
be  and  in  all  probability  would  be  granted. 

A  writ  of  error  must  be  sued  out  and  lodged  in  the 
Court  below  within  sixty  days  from  the  date  of  the  judg- 
ment. Roberts  vs.  Kendrick,  211  Federal,  970.  And 
when  such  writ  of  error  is  not  so  sued  out  and  lodged,  a 


144  Federal  Criminal  Law  Procedure. 

supersedeas  previously  granted  will  be  vacated  and  an- 
nulled.   Eoberts  vs.  Kendrick,  211  Federal,  1)70. 

Direct  to  the  Supreme  Court. — A  writ  of  error  direct 
to  the  Supreme  Court  from  the  trial  Court  may  be  taken 
in  certain  cases.  U.  S.  vs.  Mixon  et  al.,  235  U.  S.,  231; 
U.  S.  vs.  Patten,  226  U.  S.,  527.  See  also  Judicial  Code, 
1911.  Supreme  Courts  may  grant  certiorari  in  Criminal 
Case  when  case  is  one  of  great  gravity.  Anderson  vs. 
Moyer,  193  Federal,  499. 

Pauper  has  Right  to. — By  the  Act  of  June  25,  1910,  a 
poor  person  may  have  an  action  reviewed  by  writ  of  error, 
including  all  appellate  proceedings,  unless  the  trial  Court 
shall  certify  in  writing  that,  in  the  opinion  of  the  Court, 
such  appeal  or  writ  of  error  is  not  taken  in  good  faith, 
without  being  required  to  prepay  fees  or  costs  or  for  the 
printing  of  the  record  in  the  Appellate  Court  or  give  se- 
curity therefor.  The  pauper  shall  file  in  Court  a  state- 
ment under  oath  in  writing  that  because  of  his  poverty  he 
is  unable  to  pay  the  costs  of  said  suit  or  writ  of  error  or 
to  give  security  for  the  same,  and  that  he  believes  he  is 
entitled  to  the  redress  he  seeks  by  such  writ  of  error,  etc. 
Latham  vs.  U.  S.,  210  Federal,  159. 

42rr.  Writ  of  Error — Supersedeas — Pauper  Continu- 
ed.— For  good  cause  shown  a  writ  of  error  may  be  filed 
after  the  expiration  of  the  sixty  days  provided  by  the 
rules.    Freeman  vs.  U.  S.,  227  Fed.  732. 

When  a  case  is  taken  by  a  writ  of  error  direct  to  the 
Supreme  Court  it  is  there  for  all  purposes.  Goldman  vs. 
U.  S.,  245  U.  S.  474. 

A  pauper  may  have  his  cause  reviewed  by  writ  of  er- 
ror when  the  proper  orders  are  entered  and  for  guidance 
therein  see  the  foregoing  paragraph;  also  see  Page  45, 
Vol.  1,  1912  Supplement  to  Federal  Statute  Annotated, 
and  as  to  the  printing  Of  the  record  see  Meyer  vs.  U.  S., 
218  Fed.  372. 

It  is  suggested  that  an  order  should  be  entered  showing 
the  defendant  to  be  a  poor  person  within  the  purview  of 
the  act  of  Congress  of  Form  25,  1910,  and  that  the  de- 
fendant be  granted  a  writ  of  error  to  the  United  States 
Circuit  Court  of  Appeals,  for  the circuit,  in  forma 


Practice  Suggestions.  145 

pauperis,  and  that  he  be  relieved  from  paying  any  costs 
or  furnishing  security,  and  that  said  writ  of  error  be 
returnable  according  to  law;  such  order  to  be  signed  by 
the  District  Judge. 

§  42s.  Writing — Handwriting. — Because  of  the  con- 
fusion in  appellate  decisions,  the  Congress  on  Feb.  26, 
1913,  provided,  "That  in  any  proceedings  before  a  Court 
or  judicial  officer  of  the  United  States  where  the  genuine- 
ness of  the  handwriting  of  any  person  may  be  involved, 
any  admitted  or  proven  handwriting  of  such  person  shall 
be  competent  evidence  as  a  basis  for  comparison  by  wit- 
nesses or  by  the  jury,  court  or  officer  conducting  such 
proceeding,  to  prove  or  disprove  such  genuineness."  Of 
course  this  statute  does  not  attempt  to  place  a  value  on 
such  testimony.  After  being  admitted  may  be  compared. 
Short  vs.  U.  S.,  221  Federal,  248. 

It  is  well  settled  that  a  writing  cannot  be  introduced  in 
the  cause  for  the  mere  purpose  of  enabling  the  jury  to  in- 
stitute a  comparison  of  handwriting,  but  where  the  writ- 
ing had  been  admitted  for  some  other  purpose,  then  the 
jury  may  rightfully  institute  a  comparison.  Williams  vs. 
Conger,  *125  U.  S.,  397.  Withamp  vs.  U.  S.,  127  Federal, 
530. 

In  U.  S.  vs.  North,  184  Federal,  152,  Judge  Wolverton, 
after  reviewing  the  authorities,  says,  "From  these  au- 
thorities it  would  seem  that  it  was  not  the  purpose  of  the 
Courts,  where  the  writing  was  admitted  in  evidence  for 
some  other  purpose,  to  require  that  it  must  also  have  been 
admitted  by  the  defendant  to  be  genuine,  or  treated  by 
him  as  such;  but  it  is  sufficient  that  it  be  satisfactorily 
proven  to  be  in  the  handwriting  of  the  party  against 
whom  it  is  sought  to  establish  another  writing,  being  an 
issue  in  the  case,  which  he  disputes. 

In  other  words,  the  American  rule  seems  to  be  that 
such  papers  can  be  offered  in  evidence  to  the  jury,  only 
when  no  collateral  issue  can  be  raised  concerning  them, 
which  is  only  where  the  papers  are  conceded  to  be  genu- 
ine, or  are  such,  as  the  party  is  estopped  to  deny,  or  are 
papers  belonging  to  the  witness,  who  was  himself  pre- 
viously acquainted  with  the  party's  handwriting,  and  he 

10 


146  Federal  Criminal  Law  Procedure. 

exhibits  them  in  confirmation  and  explanation  of  his  own 
testimony.  When  a  writing  is  offered  for  comparison, 
its  genuineness  must  be  found  as  a  preliminary  fact  by 
the  presiding  judge  upon  clear  and  undoubted  evidence 
in  order  to  avoid  the  danger  of  fraud  and  surprise  and 
the  multiplication  of  collateral  issues. 


CHAPTER  IV. 

POSTAL  CRIMES. 

§  43.  Jurisdiction  of  State  and  Federal  Courts. 

44.  Section  3833  as  to  Jurisdiction. 

45.  Breaking  Into  and  Entering  Post  Office. 

46.  Unlawfully    Entering    Postal    Car    or    Interfering    With    Postal 

Clerk. 

47.  Assaulting  Mail  Carrier  with  Intent  to  Rob;    Robbing  Mail  and 

Injuring  Letter  Boxes  or  Mail  Matter  and  Assaulting  Carrier. 
47a.  Reasonable  Doubt  in  Appellate  Court. 
47aa.  Reasonable  Doubt. 
47b.  Duplicitousness  in  Indictment  Charging  Robbery  of  Mail  Clerk. 

48.  Obstructing  Mail. 

48a.  Presumption  as  to  Mail  on  Train. 

49.  Ferryman  Delaying  Mail. 

50.  Post  Master  or  Other  Employee  Detaining  or  Destroying  News- 

papers. 
50a.  Conspiracy  to  Open  Letters. 

51.  Post  Master  or  Employee  Detaining  or  Destroying  or  Embezzling 

Letter;    Decoy  Letters — Proper  and  Improper  Use  of. 

51a.  Fact  case;    Indictment  Under  this  Section. 

51aa.  Decoy  Letters. 

51b.  Opening  Mail. 

51c.  Injury  to  Letter  Boxes,  Etc. 

52.  Stealing,  Secreting,  Embezzling,  etc.     Mail  Matter  or  Contents. 
52a.  Indictment  Under  this  Section. 

52a.  Indictment  Under  Section   5470. 
52aa.  Mail   Protected. 

53.  Obscene  Matter,  etc.  non-mailable,  and  Penalties;    Definition  of 

Filthy;  Obscenity;  Decoy  Letter  to  Secure  Evidence  in  Con- 
ception Cases;  Indictment  and  Other  Decisions;  Post  Mark; 
Effect  of. 

53a.  Obscenity,    Scurvilousness,   Indecency,   Knowledge,   etc. 

53b.  Indictment  Under  this  Section;  Satisfying  by  Bill  of  Particu- 
lars;   Setting  forth  Whole  Instrument. 

53c.  Matter   Intended  to  Incite   Arson,  Murder  or  Assassination. 

53d.  Prize  Fight  Films— Such  Film  for  One's  Own  Convenience;  No 
Violation;    Pictorial  Representation  Included. 

53dd.  Paid  Editorial,  etc.,  to  be  Marked  Advertisement;  Statute  re- 
lates to  Second  Class  Matter. 

53ddd.  Matter  in  Federal  to  Incite  Arson,  Murder  or  Assassination 
Continued. 

53dddd.  Espionage   Act. 

53ddddd.  Prize   Fight,   Film   Act   Constitutional. 

(147) 


148  Federal  Criminal  Law  Procedure. 

§  54.     Libelous  and  Indecent  Wrappers  and  Envelopes;    Unrestricted 
Use    of   Post    Office    not    Constitutional    Right;     Not    Material 
Whether  Objectionable  Language   is  True   or   False;    What   is 
Outside  Cover  of  Wrapper;     Duns  on  Postal  Cards. 
54a.  Libelous  and  Indecent  Wrappers  and  Envelopes,  etc. 

55.  Use  of  Mails  for  Fraudulent   Purposes;     Elements  of  Offense — 

Actual  Misrepresentation  Unnecessary — When;  Threatening 
Letter;  Matrimonial  Agency;  Ordering  Goods  Without  Inten- 
tion  to  Pay;  Making  False  Financial  Statement;  Indictment, 
Punishment  and  number  of  Counts;    Other  Like  Offenses. 

55a.  Other  Illustrative  Cases  under  This   Statute — Pretending  to  be 
Eminent  Physician. 

55b.  Illustrative  Cases  of  Fraudulent  Use  of  the  Mail;   Threats. 

56.  Civil  Statute  against  Fraudulent  Use  of  Mail. 
56a.  The  Civil   Statutes  Continued. 

i   57     Fraudulently  Assuming  Fictitious  Address  or  Name. 

58.  Lottery;     Gift  Enterprise,   Circulars,  etc.,   not  Mailable. 

59.  What  Is  a  Lottery  or  Chance. 
59a.  Illustrative  Cases  of  Chance. 

60.  Land  Schemes. 

60a.  Land   Schemes  Continued. 

61.  Issuing  Stock. 

62.  Other  Cases  Under  the  Lottery  Statute. 
62a.  Other  Cases  Continued. 

63.  Post  Masters  not  to  be  Lottery  Agents. 
64     False  Returns  to  Increase  Compensation. 

65.  Civil  Remedy  to  Recover  Compensation. 
65a.  Acquittance  No  Bar  to  Civil  Suit. 

66.  Collection  of  Unlawful  Postage. 

67.  Unlawful  Pledging  or  Sale  of  Stamps. 
67a.  Receiving  Stolen  Property,  etc. 

68.  Failure  to  Account  for  Postage  and  to  Cancel  Stamps. 

69.  Issuing  Money  Order  Without  Payment. 

69a.  Conviction  Under  One  Statute,  No  Bar, — When. 

70.  Counterfeiting    Money    Orders,    etc.    and    Fraudulently    Issuing 

the  Same  After  Having  Received  the  Money  Therefor. 

71.  Counterfeiting  Postage  Stamps,  Domestic  or  Foreign. 

72.  Misappropriation  of  Postal  Funds  or  Property  by  Use  of  Failure 

to  Deposit. 

73.  Rural  Carriers  Responsible  Under  Foregoing  Section. 

74.  Stealing  Post  Office  Property. 

75.  Other  Minor  Offenses,  Including  False  Claims   and   Employees 

Contracts. 

75a.  Illegally  Carrying  Mail. 

76.  All  Persons  Employed  in  Service,  Whether  Taken  Oath  or  Not, 

Are  Employees. 


Postal  Crimes.  149 

§  43.  Postal  Crimes.— The  provisions  of  Section  3833 
that  give  jurisdiction  to  all  civil  and  criminal  causes  aris- 
ing under  the  postal  laws  to  state  and  territorial  courts, 
do  not  constitute  such  courts  Federal  Courts;  and  if 
either  a  civil  or  a  criminal  cause  be  instituted  in  the 
state  courts  involving  the  United  States  Postal  Laws, 
such  cause  may  be  removed  to  the  Federal  Courts,  under 
the  second  section  of  the  Act  of  March  3,  1875.  In  the 
case  of  New  Orleans  National  Bank  vs.  Merchant,  18 
Federal,  page  841,  which  was  a  bill  for  injunction  filed 
in  the  state  District  Court  against  the  United  States  Post- 
master at  New  Orleans,  seeking  certain  relief  against 
the  enforcement  of  the  sections  of  the  Revised  Statutes 
relating  to  fraud  orders,  and  which  action  was  removed 
into  the  Federal  Court  under  the  second  section  of  the 
Act  of  March  3,  1875,  Circuit  Judge  Pardee  held  that 
while  Section  3833  of  the  Revised  Statutes  confers  juris- 
diction upon  the  Courts  of  the  State  in  certain  instances, 
as  Courts  of  the  State,  yet  it  does  not  thereby  make  them 
Federal  Courts,  and  cases  instituted  therein  are  properly 
removable  to  the  Federal  Court. 

§  44.  How  Is  the  Section  Used. — It  would  seem,  there- 
fore, that  3833  is  reallv  a  section  of  convenience.  Since 
there  are  state  justices  of  the  peace  and  committing 
magistrates  at  nearly  all  points,  the  state  or  Federal  of- 
ficer who  discovers  a  violation  of  the  postal  laws  may 
instantly  get  a  warrant  therefrom  without  waiting  to 
communicate  with  the  more  remote  and  less  accessible 
Federal  Commissioner.  The  accounts  for  the  state  jus- 
tices of  the  peace  and  committing  magistrate  for  serv- 
ices of  this  sort  are  presented  for  approval  in  open 
Court,  just  as  United  States  Commissioners  are,  and  are 
paid  by  the  Department  at  Washington. 

§  45.  Breaking  Into  and  Entering  Post-Office. — We 
now  come  to  a  consideration  of  the  various  sections  of  the 
Criminal  Code,  starting  with  offenses  against  the  postal 
service  and  system,  because  they  are  the  most  common 
violation.  Section  5478  of  the  old  statutes  is  altered  very 
little  by  Section  192  of  the  new  Code.  The  words  "hard 
labor"  are  left  out  of  the  new  statute,  but  under  Section 


150  Federal  Criminal.  Law  Procedure. 

338  of  the  new  Code,  the  omission  of  the  words  ''hard 
labor"  from  any  provision  of  the  new  Code  prescribed  in 
the  punishment,  is  not  construed  as  depriving  the  Court 
of  the  power  to  impose  hard  labor  as  a  part  of  the  pun- 
ishment in  any  case  where  such  power  existed  under  the 
old  statute. 

The  new  Section  also  contains  the  following  words, 
"with  intent  to  commit  in  such  post-office  or  building,  or 
part  thereof  so  used,"  that  were  not  in  the  old  statute. 
These  words  were  doubtless  added  by  the  codifiers  to 
call  the  attention  of  the  pleader  to  the  fact  that  Congress 
had  no  jurisdiction  to  prescribe  a  penalty  for  entering  a 
building,  or  for  committing  an  offense  in  a  building,  un- 
less such  building  was  actually  used  as  a  post-office  or 
such  offense  was  committed  in  that  part  of  said  building 
so  used  as  such  post-office. 

In  the  16  Federal,  page  235,  United  States  against 
Campbell,  the  Court  sustains  a  demurer  to  an  indictment 
which  charged  forcible  breaking  into  a  building,  which 
building  was  then  and  there  used  in  part  as  a  post-office 
of  the  United  States,  "with  the  intent  then  and  there,  in 
said  building,  to  commit  the  crime  of  larceny."  In  pass- 
ing upon  the  demurrer,  the  Court  said  that,  "a  building 
used  in  part  as  a  post-office  may  contain  many  rooms  be- 
sides the  one  or  more  used  as  a  post-office.  That  there 
is  some  portion  of  it  not  so  used  is  necessarily  implied  in 
the  phrase  'used  in  part  as  a  post-office.'  To  break  into 
such  a  building  with  the  intent  to  steal  the  purse  of  the 
lodger  in  a  room  therein  that  is  in  no  way  used  as  a  post- 
office,  nor  connected  with  it,  except  that  it  is  under  the 
same  roof,  does  not  appear  to  me  to  be  an  act  which  the 
United  States  may  punish,  upon  the  ground  that  it  is 
necessary  to  do  so  in  the  execution  of  the  power  granted 
to  Congress  to  establish  apost-office."  Mr.  Justice  Storey, 
in  United  States  vs.  Coombs,  12  Peters,  76,  said:  "If  the 
section  admits  of  two  interpretations,  one  of  which  brings 
it  within,  and  the  other  presses  it  beyond,  the  constitu- 
tional authority  of  Congress,  it  will  become  our  duty  to 
adopt  the  former  construction;  because  a  presumption 
never  ought  to  be  indulged  that  Congress  meant  to  ex- 


Postal  Crimes.  151 

ercise  or  usurp  any  unconstitutional  authority,  unless 
that  conclusion  is  forced  upon  the  Court  by  language  al- 
together unambiguous. ' ' 

The  idea,  therefore,  is  that  the  statute  meant  to  punish 
the  breaking  into  a  building  used  in  part  as  a  post-office, 
with  the  intent  to  commit  larceny  in  that  part  of  the 
building  so  used  as  such  post-office.  To  the  same  effect 
is  the  case  of  in  re  Byron,  18  Federal,  page  723;  also 
United  States  vs.  Williams,  57  Fed.,  201;  also  United 
States  vs.  Shelton,  100  Fed.,  831;  United  States  vs.  Mar- 
tin, 140  Fed.,  256;  United  States  vs.  Saunders,  77  Fed., 
170. 

In  the  30  Federal,  232,  United  States  vs.  Lantry,  the 
Court  held  that  the  prisoners  were  not  entitled  to  the  pre- 
sumption that  they  had  hidden  themselves  within  the 
building,  merely  because  they  had  been  seen  with  other 
person  lawfully  within  the  premises  before  they  were 
closed  for  the  night.  In  this  same  case,  the  Court  refus- 
ed, upon  habeas  corpus,  to  go  beyond  the  finding  of  a 
Commissioner,  as  to  the  probable  guilt  of  the  prisoners, 
and  followed  the  authorities  of  in  re  Fowler,  4  Fed.,  303, 
and  in  re  Day,  27  Federal,  678. 

The  case  of  Considine  vs.  United  States,  which  holds 
that  a  violation  of  Section  5478  is  a  misdemeanor,  and 
not  a  felony,  and,  therefore,  but  three  challenges  are  per- 
mitted the  defendant,  will  not  now  be  considered  binding 
against  defendants  under  the  new  Code,  for  the  reason 
that  the  punishment  is  felonious  within  the  meaning  of 
such  offenses  as  defined  by  Section  335  of  the  new  Code. 
Section  819  of  the  Revised  Statutes  allows  the  defendant 
charged  with  a  felony  ten  challenges;  therefore,  one  be- 
ing prosecuted  under  Section  192  would  be  entitled  to 
ten  instead  of  three  challenges. 

The  word  "forcible"  when  used  in  a  criminal  statute 
in  describing  night-time  or  day-time  burglaries,  compre- 
hends the  opening  of  a  door  or  the  raising  of  a  window 
or  the  raising  of  a  latch,  in  fact,  the  use  of  any  force  in 
making  an  entry.  In  74  Federal,  221,  United  States  vs. 
Yennie,  it  was  held  that  an  entry  into  a  postmaster's 
room  in  the  post-office  building,  by  opening  the  door, 


152  Federal  Criminal  Law  Procedure. 

was  a  forcible  entry  within  the  meaning  of  the  statute. 
This  case  is  also  interesting  in  that  it  determines  that  an 
indictment  is  good,  even  though  in  the  same  count  it 
charges  the  forcible  entry  and  the  theft  of  the  property, 
and  that  while  such  allegations  constitute  separate  of- 
fenses under  old  Sections  5475  and  5478,  yet  they  are 
offenses  of  the  same  kind  and  the  same  grade  of  punish- 
ment, though  with  different  degrees  of  severity,  and  upon 
the  authority  of  Com.  vs.  Tuck.,  20  Pick.,  356,  the  Court 
holds  that  both  offenses  relate  to  and  are  parts  of  the 
same  transaction,  and  may,  therefore,  be  included  in  the 
same  count  without  error,  though  perhaps  the  best  prac- 
tice not  to  do  so.  See  also  Horner  vs.  United  States,  143 
U.  S.,  207;  ex  parte  Peters,  12  Federal,  46. 

Sorenson  vs.  United  States,  143  Federal,  820,  and  Sor- 
enson  vs.  United  States,  168  Federal,  785,  are  cases  aris- 
ing under  Section  5478,  and  which  do  not  decide  any 
point  with  reference  to  the  statute  or  an  indictment  there- 
under. They  contain,  however,  some  interesting  ques- 
tions of  practice  with  reference  to  circumstantial  evi- 
dence and  other  matters  not  necessary  to  here  discuss. 

§  46.  Unlawfully  Entering  Postal  Car  or  Interfering 
with  Postal  Clerk,  Etc. — Closely  akin  to  the  statute  just 
discussed  is  Section  193  of  the  new  Code,  which  inhibits 
entering  by  violence  a  post-office  car,  or  any  apartment  in 
any  car,  steamboat,  or  vessel  assigned  to  the  use  of  the 
mail  service,  and  also  denominates  as  an  offense  any  wil- 
ful or  malicious  assault  or  interference  with  any  postal 
clerk  in  the  discharge  of  his  duties  in  connection  with 
such  car,  steamboat,  vessel  or  apartment,  and  also  pun- 
ishes any  one  who  shall  wilfully  aid  or  assist  in  either. 

Neither  this  section,  nor  the  substance  thereof,  was 
included  in  the  old  Revised  Statutes.  There  was  a  pro- 
vision largely  similar  passed  by  the  Fifty-seventh  Con- 
gress, as  shown  at  page  1176  of  the  32  Statute  at  Large. 
That  provision  has,  however,  been  broadened  by  the 
omission  of  some  words  and  the  substitution  of  others. 

A  close  reading  of  the  statute  indicates  that  the  au- 
thorities that  relate  to  entering  a  post-office  or  a  building 
used  in  part  as  such  office,  cited  under  the  old  statute 


Postal  Crimes.  153 

5478  and  under  the  new  Section  192,  would  be  in  a  large 
measure  applicable  to  this  question. 

§  47.  Assaulting  Mail  Carrier  with  Intent  to  Rob,  and 
Robbing  Mail  and  Injuring  Letter  Boxes  or  Mail  Matter, 
and  Assaulting  Carrier,  Etc.— Under  this  heading,  for 
convenience,  is  placed  Sections  197  and  198  of  the  new 
Code.  Section  197  is  a  combination  of  the  old  Sections 
5472  and  5473. 

Section  198  comprehends  the  meat  of  old  Sections  3869 
and  5466.  3869  had  already  been  amended  by  the  Act 
shown  on  page  1175  of  the  first  part  of  Volume  32  of  the 
Statutes  at  Large,  which  was  an  act  of  the  Fifty-seventh 
Congress.  The  present  section,  as  it  now  stands,  is  in- 
tended to  protect  more  certainly  the  numberless  rural 
route  and  star  route  boxes  and  mail  receptacles. 

It  must  be  understood  that  no  mail  receptacle  is  pro- 
tected under  this  statute,  unless  the  same  has  been  es- 
tablished, approved,  or  designated  by  the  Postmaster 
General.  The  indictment  should,  therefore,  allege  such 
approval,  designation,  and  establishment,  and  the  proof 
must  so  show.  As  to  just  what  sort  of  proof  the  Court 
will  admit,  no  inflexible  rule  can  be  given.  The  Courts 
understand  that  it  is  impossible  to  bring  the  Postmaster 
General  or  some  informed  subordinate  from  his  office  into 
the  various  Districts  of  the  Union,  and  testify  to  such 
action  at  Washington,  and  they,  therefore,  sometimes  ad- 
mit the  testimony  of  the  local  postmaster  that  the  recep- 
tacle is  the  proper  one,  or  sometimes  they  admit  the  re- 
ceptacle itself,  which  has  stamped  thereon  the  words  de- 
signated, established,  or  approved  by  the  Postmaster 
General.  So  also,  some  of  the  printed  regulations  of 
the  Post-office  Department  give  the  dimensions  and  styles 
and  description  of  the  various  receptacles,  and  these 
are  sometimes  admitted.  The  books  contain  no  partic- 
ular line  of  precedents  with  respect  to  such  proof. 

Section  197  of  the  new  Code,  which  is,  as  above  stated, 
a  substitute  for  5472  and  5473  of  the  old  statute,  elimi- 
nates some  of  the  uncertainties  that  were  in  the  old  stat- 
utes, and  as  the  new  section  now  stands,  it  is  easily  un- 
derstood.    The  following  cases  were  interesting  under 


154  Federal  Criminal-  Law  Procedure. 

the  old  section:  United  States  vs.  Reeves,  38  Fed.,  404, 
which  determined  in  line  with  the  academic  authorities, 
the  meaning  of  the  words  "dangerous  weapon,"  the  re- 
sponsibility of  one  aiding  or  advising  the  offense,  the 
meaning  of  the  words  "attempt  to  rob,"  and  the  further 
decision  that  the  offense  is  committed  where  it  is  shown 
that  the  mail  or  any  part  thereof  is  taken  fraudulently 
from  the  possession  of  the  carrier,  against  his  will,  by 
violence  or  putting  him  in  fear.  In  Jeff  Harrison  vs. 
United  States,  163  U.  S.,  140,  the  only  point  decided  was 
that  a  violation  of  5472  was  a  felony,  and  on  the  prose- 
cution for  which  the  defendant  was  entitled  to  ten  per- 
emptory challenges  under  Section  819.  United  States 
vs.  Hare,  2  Wharton  Crim.  Cases,  283,  26  Federal  Cases, 
148;  U.  S.  vs.  Wilson,  28  Federal  Cases,  699;  U.  S.  vs. 
Bowman,  5  Pac.  Rep.  333. 

§  47a.  Reasonable  Doubt  in  Appellate  Court. — Mat- 
thews vs.  U.  S.,  192  Federal,  490,  is  a  fact  case  under  old 
Section  5472,  in  which  the  Court  of  Appeals  affirms  a 
judgment  based  upon  circumstantial  evidence  and  an- 
nounces the  rule  that  an  Appellate  Court  need  not  be 
satisfied  beyond  a  reasonable  doubt  of  the  guilt  of  the 
defendants  in  order  to  affirm. 

47aa.    Reasonable  Doubt. 

The  reasonable  doubt  to  which  a  defendant  is  entitled 
extends  to  each  element  in  the  case,  Spear  vs.  U.  S.  228 
Fed.  486,  and  the  court  cannot  take  the  force  of  such 
doubt  away  by  a  strong  statement  of  the  case,  Oppen- 
heim  vs.  U.  S.  241  Fed.  626. 

A  reasonable  doubt  is  a  doubt  for  which  a  sensible 
man  could  give  good  reason,  based  on  evidence  or  want 
of  evidence,  and  is  such  a  doubt  as  a  sensible  man  would 
act  or  decline  to  act  upon,  Sotello  vs.  U.  S.  256  Fed.  721. 

§  476.  Duplicitousness. — An  indictment  which  charges 
that  the  defendant  attempted  to  rob  the  mail  clerk  and 
put  his  life  in  jeopardy  is  not  duplicitous.  Price  vs.  U. 
S.,  218  Federal,  149.  '"Magon  vs.  U.  S.,  260  Fed.  811, 
holds  that  different  counts  are  not  a  species  of  duplici- 
tousness." 


Postal  Crimes.  155 

§  48.  Obstructing  the  Mail.— Section  201  of  the  new 
Code  takes  the  place  of  Section  3995  of  the  old,  and  en- 
larges the  same  by  adding  the  words  "car,  steamboat, 
or  other  conveyance  or  vessel,"  and  changes  the  punish- 
ment, which  was,  in  the  old  statute,  a  fine  of  not  more 
than  a  hundred  dollars,  to  a  fine  of  not  more  than  one 
hundred  dollars,  or  imprisonment  for  not  more  than  six 
months,  or  both.  These  changes,  however,  do  not  render 
valueless  the  many  cases  arising  under  the  old  section. 

In  Salla  vs.  United  States,  104  Fed.,  544,  the  Court  of 
Appeals  for  the  Ninth  Circuit  held  that  an  indictment 
charging  defendants  with  conspiring  "to  unlawfully, 
wilfully,  maliciously,  and  knowingly"  delay  and  ob- 
struct, etc.,  the  passage  of  a  railway  car  and  train, 
"which  said  railway  car  and  train  were  then  and  there 
carrying  and  transporting  the  mails  of  the  United 
States,"  was  insufficient  to  charge  a  violation  of  Section 
3995,  since  it  failed  to  charge  that  the  defendants  knew 
that  said  car  and  train  were  carrying  the  mails.  In  other 
words,  the  authorities  are  a  unit  upon  the  proposition  that 
the  indictment  must  allege,  and  the  proof  must  show,  that 
the  defendants  knew  that  the  vehicle  they  obstructed 
carried  the  United  States  mail. 

By  an  Act  of  the  Fifty-seventh  Congress,  second  ses- 
sion, page  1176  of  the  first  part  of  Volume  32,  Statute  at 
Large,  Congress  determined  "that  every  special  delivery 
messenger,  when  actually  engaged  in  carrying  or  de- 
livering letters  or  other  mail  matter  under  contract,  di- 
rectly or  indirectly,  with  the  Post-office  Department,  or 
employed  by  the  Post-office  Department,"  shall  be  deem- 
ed a  carrier  or  person  intrusted  with  the  mail,  and  having 
custody  thereof,  within  the  meaning  of  certain  Sections 
of  the  Eevised  Statutes,  which  included  old  Section  3995. 

It  has  been  directly  decided  that  two  or  more  may  con- 
spire  to  commit  the  offense  of  obstructing  the  mail,  as 
shown  in  Conrad  vs.  United  States,  127  Fed.,  798.  Other 
interesting  cases  bearing  upon  the  old  section  are  the  fol- 
lowing: United  States  vs.  Kirby,  74  U.  S.;  19  Law  Ed., 
278,  and  see  also  note;  in  re  Debs,  158  U.  S.,  564;  Clune  vs 
United  States,  159  U.  S.,  590;  United  States  vs.  Cassidy', 


156  Federal  Criminal  Law  Procedurk. 

67  Fed.,  698;  United  States  vs.  Thomas,  55  Fed.,  380; 
United  States  vs.  Sears,  55  Fed.,  268;  United  States  vs. 
Woodward,  44  Fed.,  592;  United  States  vs.  Kane,  19 
Fed.,  42;  United  States  vs.  Claypool,  14  Fed.,  127;  United 
States  vs.  De  Mott,  3  Federal,  478. 

An  officer  in  possession  of  a  civil  warrant  against  a 
mail  carrier  is  not  justified  in  arresting  the  mail  carrier, 
though  the  carrier  be  not  detained  longer  than  necessary 
for  the  execution  of  the  warrant.  United  States  vs.  Har- 
vey, 8  Law  Rep.,  77.  In  United  States  vs.  Barney,  3  Am. 
Law  Journal,  128,  the  Court  held  in  substance  that  the 
law  did  not  allow  any  justification  of  a  wilful  and  volun- 
tary act  of  obstruction  to  the  passage  of  the  mail,  such 
as  the  seizure  by  its  lawful  owner  of  a  stolen  horse 
found  in  a  mail  stage,  or  the  arrest  of  its  driver  for  debt. 
On  the  other  hand,  in  United  States  vs.  Hart,  Pet.  C.  C, 
390;  S.  C.  3  Wheeler's  Criminal  Case,  304,  the  Court 
held  that  the  Act  was  not  to  be  so  construed  as  to  pre- 
vent the  arrest  of  the  driver  of  a  carriage  transporting 
the  mail  when  he  was  driving  through  a  crowed  city  at 
such  a  rate  as  to  injure  the  lives  of  the  inhabitants.  So 
also,  it  is  understood  that  mere  service  of  process  on  a 
mail  carrier,  without  detaining  him,  is  not  an  obstruc- 
tion of  the  mail.  United  States  vs.  Harvev,  8  Law  Rep., 
77. 

It  seems,  however,  to  be  settled  that  while  a  mail  car- 
rier is  not  liable  to  arrest  upon  civil  process — that  he  is 
liable  to  arrest  on  a  charge  of  any  criminal  offense,  as  a 
violation  of  the  law  against  the  sale  of  liquor.  Penny 
vs.  Walker,  64  Maine,  430;  S.  C.  18  American  Rep.,  269. 

The  safest  practice,  however,  in  view  of  the  public 
interest  in  the  speeding  of  mails,  is  for  the  officer  to  make 
the  arrest  after  the  carrier  has  delivered  his  charge, 
which  is  not  at  all  difficult  to  accomplish. 

§  4:8a.  Presumption  as  to  Mail  on  Train. — Judge 
Speer  decided  the  case  of  U.  S.  vs.  Hall,  206  Federal, 
485,  and  held  that  every  passenger  train  must  be  pre- 
sumed to  be  a  carrier  of  United  States  mail  and  that 
therefore  an  allegation  of  knowledge  was  unnecessary  in 
an  indictment  under  Section   201.     The  learned   judge 


Postal  Crimes.  157 

cities  no  authorities  in  support  of  his  decision.  It  is  not 
believed  that  such  a  presumption  will  be  allowed  in  the 
criminal  law.  The  stopping  of  a  train,  the  chastising  of 
the  engineer  of  a  train  or  the  infliction  of  bodily  punish- 
ment upon  the  members,  of  the  crew  of  a  train  without 
any  thought  of  delaying  the  United  States  mail  which 
might  or  might  not  be  on  such  a  train,  would  certainly 
not  be  an  offense  within  the  jurisdiction  of  the  United 
States  Courts.  There  must  be  an  allegation  that  the  de- 
fendant knew  that  the  carriage  thus  delayed  was  con- 
veying United  States  mail  and  it  is  thought  that  Salla 
vs.  U.  S.  104  Federal,  544,  correctly  states  the  rule,  that 
is  if  there  be  no  allegation  that  the  defendants  knew  that 
the  car  and  train  were  carrying  the  mails,  the  indict- 
ment is  defective. 

§  49.  Ferryman  Delaying  the  Mail.— Section  202  dif- 
fers little  from  the  old  statute  3996,  and  reads  as  follows: 

"Whoever,  being  a  ferryman,  shall  delay  the  passage  of  the  mail 
by  wilful  negligence  or  refusal  to  transport  the  same  across  any 
ferry,  shall  be  fined  not  more  than  one  hundred  dollars." 

The  penalty  of  the  old  statute  was  ten  dollars,  and  re- 
quired that  a  delay  should  be  for  ten  minutes,  but  the 
new  section  evidentlv  means  any  delav  that  is  wilful. 

§  50.  Postmaster  or  Other  Employee  Detaining  or 
Destroying  Newspapers. — Section  196  of  the  new  Code, 
which  reads  as  follows: 

"Whoever,  being  a  postmaster  or  other  person  employed  in  any  de- 
partment of  the  postal  service,  shall  improperly  detain,  delay,  embezzle, 
or  destroy  any  newspaper,  or  permit  any  other  person  to  detain,  delay, 
embezzle,  or  destroy  the  same,  or  open,  or  permit  any  other  person  to 
open,  any  mail  or  package  of  newspapers  not  directed  to  the  office 
where  he  is  employed;  or  whoever  shall  open,  embezzle,  or  destroy 
any  mail  or  package  of  newspapers  not  being  directed  to  him,  and 
he  not  authorized  to  open  or  receive  the  same;  or  whoever  shall 
take  or  steal  any  mail  or  package  of  newspapers  from  any  post-office 
or  from  any  person  having  custody  thereof,  shall  be  fined  not  more 
than  one  hundred  dollars,  or  imprisoned  not  more  than  one  year,  or 
both." 

replaced  Section  5471  of  the  old  statutes,  and  contains 
practically  nothing  new  except  that  the  wording  is 
changed  somewhat,  and  the  punishment  is  enlarged. 


158  Federal  Criminal  Law  Procedure. 

For  some  reasons  tliere  were  few  prosecutions  under 
5471,  and  so  far  as  reported  decisions  are  concerned,  the 
books  contain  none.  Ex  parte  Friday,  in  43  Federal, 
page  920,  cited  by  some  annotations,  really  does  not  bear 
upon  the  section  other  than  to  cite  it  as  an  instance  of  the 
power  of  a  Court  to  impose  hard  labor,  even  though  th^ 
term  be  less  than  one  year.  In  State  vs.  Nichols,  50  Louis- 
iana Ann.,  699,  the  statute  is  cited. 

At  page  512  of  the  First  Volume  of  the  Supplement, 
being  an  Act  of  the  Forty-ninth  Congress,  which  applies 
alike  to  all  of  the  statutes  relating  to  offenses  against  the 
postal  service,  committed  by  persons  employed  therein  in 
connection  with  the  immediate  delivery  service,  whether 
temporarily  or  permanently,  or  whether  under  oath  or 
not : — 

"That  any  person  employed  to  make  immediate  delivery  of  letters 
or  other  mail  matter  under  the  provisions  of  this  Act,  or  the  Act  of 
which  the  same  is  amendatory,  shall  be  deemed  an  employee  of  th^ 
postal  service,  whether  he  may  have  been  sworn  or  not,  or  tempora- 
rily or  permanently  employed,  and  as  such  employee  shall  be  liable  to 
any  penalties  or  punishment  provided  by  law  for  the  improper  detent- 
ion, delay,  secretion,  rifling,  embezzlement,  purloining,  or  destruction 
of  any  letter  or  other  article  of  mail  matter,  or  the  contents  thereof,  en- 
trusted to  him  for  delivery,  or  placed  in  his  custody." 

50a.  Conspiracy  to  Open  Anothers  mail.  Kirkwood 
vs.  U.  S.  256  Fed.  825. 

§  51.  Postmaster  or  Employee  of  Service  Detaining  or 
Destroying  Embezzling  Letter,  Etc. — Section  195  of  the 
new  Code,  which  reads  as  follows: 

"Whoever,  being  a  postmaster  or  other  person  employed  in  any 
department  of  the  postal  service,  shall  unlawfully  detain,  delay,  or 
open  any  letter,  postal  card,  package,  bag,  or  mail  entrusted  to  him 
or  which  shall  come  into  his  possession,  and  which  was  intended  to 
be  conveyed  by  mail  or  carried  or  delivered  by  any  carrier,  messenger, 
agent,  or  other  person  employed  in  any  department  of  the  postal 
service,  or  forwarded  through  or  delivered  from  any  post  office  or 
station  thereof  established  by  authority  of  the  Postmaster  General; 
or  shall  secrete,  embezzle,  or  destroy  any  such  letter,  postal  card, 
package,  bag,  or  mail;  or  shall  steal,  abstract,  or  remove  from  any 
such  letter,  package,  bag,  or  mail,  any  article  or  thing  contained 
therein,  shall  be  fined  not  more  than  five  hundred  dollars,  or  imprison- 
ed not  more  than  five  years,  or  both." 


Postal.  Crimes.  159 

takes  the  place  of  Sections  3890,  3891,  and  5467  of  the 
old  statutes.  The  new  law,  as  above  quoted,  does  not 
contain  the  inhibition  against  the  holding  of  office  by  a 
postmaster  who  unlawfully  detains  letters  or  mail  mat- 
ter, but  largely  increases  the  punishment.  The  three  old 
sections  were  a  source  of  considerable  confusion,  and  with 
the  making  of  the  new  section,  which  plainly  states,  in 
commensurate  words,  the  elements  of  the  offenses  therein 
included,  this  will  be  largely  removed. 

The  system  of  postal  supervision  and  preservation  by 
and  through  efficient  Inspectors,  ofttimes  makes  it  nec- 
essary to  use  what  have  been  termed  "decoy"  letters. 
A  series  of  thefts  may  be  reported  at  a  certain  office, 
and  by  a  process  of  elimination  the  Inspectors  conclude 
that  the  thefts  occur  during  a  certain  watch.  There  may 
be  more  than  one  man  upon  this  watch,  and  it  is  entire- 
ly unjust  to  suspect  all  of  them.  Decoys  are,  therefore, 
used.  These  decoy  letters  are  sometimes  called  "test" 
letters.  The  question  arose  as  to  whether  or  not  such 
letters  could  be  the  subject  of  the  offense  described  and 
punished  by  5467,  and  the  other  articles  akin  thereto. 
It  is  now  settled,  beyond  dispute,  that  such  letters  may 
be  the  subject  of  the  offenses  defined.  In  Hall  vs.  United 
States,  168  U.  S.,  631;  42  Law  Ed.,  607,  the  point  was 
raised  as  follows,  which  is  taken  from  that  case: 

"The  evidence  showed  that  the  Government  detectives  prepared 
a  special  delivery  letter  designed  as  a  test  or  decoy  letter,  containing 
marked  bills,  and  delivered  it,  bearing  a  special  delivery  stamp,  to  the 
nght-clerk  in  charge  of  Branch  Station  'F'  of  the  post-office.  The 
defendant  was  not  a  letter  carrier,  but  a  clerk  employed  at  that 
office,  whose  duty  it  was  to  take  charge  of  special  delivery  letters, 
enter  them  in  a  book  for  that  purpose,  and  then  place  them  in  course 
of  transmission.  The  letter  in  question  was  addressed  to  Mrs.  Susan 
Metcalf,  a  fictitious  person,  346  East  Twenty-fourth  Street,  New  York 
City,  a  fictitious  number.  The  letter  was  placed  by  the  night  clerk 
with  other  letters  upon  the  table,  where  such  letters  were  usually 
placed,  and  the  defendant,  entering  the  office  not  long  after,  took  this 
letter,  along  with  the  others  on  the  same  table,  removed  them  to  his 
desk,  and  properly  entered  the  other  letters,  but  did  not  enter  this  letter. 
On  leaving  the  office,  not  long  after,  the  omission  to  enter  the  letter 
having  been  observed,  he  was  arrested,  and  the  money  contents  of  the 
letter,  marked  and  identified  by  the  officers,  were  found  upon  his  per- 


160  Federal,  Criminal  Law  Procedure. 

son.  The  officers  testified  upon  cross  examination  that  the  address 
was  a  fictitious  one;  that  the  letter  was  designed  as  a  test  letter, 
and  that  they  did  not  intend  that  the  letter  should  be  delivered  to  Mrs. 
Susan  Metcalf,  or  that  address,  and  that  it  could  not  be  delivered  to 
that  person  at  that  address.'' 

Upon  this  state  of  facts,  the  Supreme  Court  held  that 
the  facts  stated  an  offense,  and  the  evidence  was  entire- 
ly sufficient  to  sustain  the  conviction  upon  the  latter  part 
of  Section  5467,  which  did  not  include  the  words  "in- 
tended to  be  conveyed  by  mail."  The  Court  cites  Good 
vs.  United  States,  159  U.  S.,  663;  40  Law  Ed.,  297;  Mont- 
gomery vs.  United  States,  162  U.  S.,  410;  40  Law  Ed., 
1020. 

I  have  spoken  in  a  preceding  paragraph  of  the  use  of 
decoy  letters  by  government  inspectors  and  the  approval 
of  such  use  by  the  Courts  as  expressed  in  Hall  vs.  U.  S. 
Judge  Bourquin  draws  a  distinction  in  United  States 
vs.  Healy,  202  Federal,  349,  between  the  proper  and  the 
improper  use  of  the  decoy.  Such  distinction  is  most 
pleasing  since  everyone  dislikes  to  approve  any  course  on 
the  part  of  the  official  which  appears  to  be  overreaching 
or  which  suggests  to  the  weak  an  easy  way  to  get  money 
or  something  of  value.  In  the  Healy  case  it  was  said 
that  decoys  are  permissible  to  entrap  criminals  or  to 
present  opportunity  to  those  having  intent  to  or  who  are 
willing  to  commit  crime,  but  not  to  create  criminals,  or 
to  ensnare  the  law  abiding  into  committing  an  offense 
without  an  intent  to  do  so.  Where  a  statute  makes  an 
act  a  crime  regardless  of  the  actor's  intent  or  knowl- 
edge, ignorance  of  fact  is  no  excuse  if  the  act  is  done 
voluntarily;  but  if  done  on  solicitation  by  the  govern- 
ment's instrument  to  that  end,  ignorance  of  fact  shows 
the  act  to  have  been  involuntary  and  estops  the  govern- 
ment from  claiming  a  conviction. 

The  observations  in  that  case  were  based  upon  facts 
which  showed  that  the  government's  decoy  claimed  that 
he  was  not  an  Indian  when  as  a  matter  of  fact  he  was, 
and  upon  his  representation  that  he  was  not  an  Indian 
the  defendant  acted  and  sold  him  spirituous  liquors. 
The  court,  of  its  own  motion,  set  aside  the  conviction. 


Postal  Crimes.  161 

It  will  be  observed  that  the  new  statute  uses  the  word 
"such,"  which  means,  beyond  any  question  of  a  doubt, 
a  letter,  postal-card,  package,  bag,  or  mail,  which  was 
intended  to  be  conveyed  by  mail,  or  carried  or  delivered 
by  a  carrier,  messenger,  agent,  or  other  person  employed 
in  a  Department  of  the  postal  service,  or  forwarded 
through,  or  delivered  from,  any  post-office  or  station.  If, 
therefore,  the  testimony  of  the  Government  Inspector 
should  disclose  that  he  did  not  intend  that  the  decoy  or 
test  should  be  carried  or  delivered  or  conveyed  by  mail, 
or  forwarded  through,  or  delivered  from,  any  post-office, 
then  and  in  that  event,  the  new  section  would  not  be  suf- 
ficiently broad  to  prosecute  an  employee  who  stole  a  de- 
coy or  test  letter.  Hall  vs.  U.  S.,  168  U.  S.,  631.  The 
last  portion  of  the  old  statute  5467  made  it  an  offense  for 
any  such  person,  to  wit,  employee,  to  take  any  of  the 
things  mentioned  therein  out  of  any  letter,  packet,  bag, 
or  mail  which  had  come  into  his  possession  as  such  em- 
ployee; which  is  vastly  different  in  its  broadness  from 
the  present  statute. 

The  case  of  Ennis  vs.  United  States,  154  Federal,  842, 
decides  that  a  piece  of  mail  matter  which  had  been  set 
aside  by  a  dishonest  employee  to  be  later  taken,  and 
which  was  discovered  by  an  inspector,  and  taken  to  the 
addressee,  from  whom  the  inspector  secured  permission 
to  open  the  packet,  and  thereupon  marked  certain  bills, 
and  placed  them  in  the  said  packet,  and  then  returned 
the  packet,  where  the  employee  had  left  it,  such  em- 
ployee afterwards  taking  the  packet:  held,  that  the 
packet,  at  the  time  it  was  returned  by  the  Inspector,  had 
not  ceased  to  be  mail  matter,  and  that  the  defendant 
was,  therefore,  properly  convicted  of  embezzling  the 
same,  in  support  of  which  the  Court  cites  Scott  vs.  United 
States,  172  U.  S.,  343;  43  Law  Ed.,  471,  and  also  ar- 
gues that  a  letter  delivered  to  the  wrong  address,  and  re- 
mailed  with  the  canceled  stamp  thereon,  if  stolen  after 
being  re-mailed,  would  appear  to  be  an  offense  under 
the  section.  In  the  case  of  Bromberger  vs.  United  States, 
128  Federal,  346,  the  Court  held  that  a  letter  properly 
stamped,  with  the  receiving  stamp  of  the  office  thereon, 
ll 


102  Federal  Criminal  Law  Procedure. 

and  placed  in  a  carrier's  pigeon  hole  at  a  postal  station, 
with  other  letters  addressed  to  a  real  person  on  his  route 
;s  "intended  to  be  conveyed  by  mail,"  and  its  abstrac- 
tion by  the  carrier,  and  the  taking  of  the  money  there- 
from constitutes  an  offense  under  5467,  although  it  was 
placed  there  by  postal  inspector  for  the  purpose  of  test- 
ing the  carrier's  honesty. 

The  difference  between  the  Bromberger  case  and  the 
TTall  case  is,  that  the  test  or  decoy  in  the  Bromberger 
case  was  addressed  to  an  actual  person,  and  was  intended 
for  delivery  to  such  person,  while  in  the  Hall  case,  it 
was  a  fictitious  address,  and  no  such  delivery  could  be 
made.  Under  the  new  statute,  therefore,  the  indictment 
must  allege,  and  the  proof  must  show,  that  the  matter 
was  intended  to  be  conveyed  by  mail,  or  carried  or  de- 
livered by  a  carrier,  messenger,  agent,  or  other  person 
employed  in  a  Department  of  the  Postal  Service,  or  for- 
warded through  or  delivered  from  any  post-office  or 
station  thereof,  established  by  authority  of  the  Postmas- 
ter General,  and  if  the  decoy  or  test  be  to  a  fictitious 
person,  at  an  address  where  the  delivery  cannot  be 
made,  it  would  not,  under  the  new  statute,  be  an  offense. 

Under  the  authority  of  Shaw  vs.  United  States,  in  165 
Federal,  page  174,  the  indictment  must  allege  lawful 
possession,  but  under  the  authorities  of  United  States  vs. 
Trasp,  127  Federal,  471,  and  Bowers  vs.  United  States, 
148  Federal,  379,  and  United  States  vs.  Falkenhainer, 
21  Federal,  624,  it  is  not  necessary  to  allege  the  owner- 
ship of  the  packet.  The  employee,  under  the  present 
section,  whether  he  be  postmaster  or  other  person,  can 
offend  against  the  new  law  only  when  he  is  such  em- 
ployee, has  mail  entrusted  to  him,  or  has  mail  in  his  pos- 
session when  the  same  was  to  be  conveyed  and  delivered 
as  hereinbefore  shown.  So,  too,  it  will  be  noticed  that 
the  new  section  makes  it  an  offense  to  secrete,  embezzle, 
or  destroy  any  such  letter,  postal  card,  package,  bag,  or 
mail,  and  also  makes  it  an  offense  to  steal,  abstract,  or 
remove  from  any  such  package,  bag,  or  mail,  any  article 
or  thing  therein,  and  does  not  make  use  of  the  word 
'value."    In  other  words,  any  article,  whether  of  value 


Postal  Crimes.  163 

or  not,  and  any  letter  or  packet,  whether  it  has  any  ar- 
ticle in  it  or  not,  under  this  new  section,  is  protected  by 
its  provisions,  and  it  is  thought  that  this  broadness 
comes  by  reason  of  its  comprehending  the  elements  of 
3890  and  3891,  as  well  as  those  of  5467.  Other  cases  bear- 
ing upon  these  three  sections  are  Alexis  vs.  United 
States,  129  Federal,  60;  Chitwood  vs.  United  States,  153 
Federal,  551;  United  States  vs.  Kerr,  159  Federal,  185; 
United  States  vs.  Wilson,  44  Federal,  59.3;  United  States 
vs.  Lacher,  134  U.  S.,  624;  United  States  vs.  Delany,  55 
Federal,  475;  United  States  vs.  Gruver,  35  Federal,  59; 
United  States  vs.  Byrne,  44  Federal,  188;  Walster  vs. 
United  States,  42  Federal,  891;  United  States  vs.  Mat- 
thews, 35  Federal,  890;  Eosencrans  vs.  United  States, 
165  U.  S.,  257;  in  re  Wight,  134  U.  S.,  136;  U.  S.  vs.  Tay- 
lor, 37  Federal,  200;  Jones  vs.  United  States,  27  Federal, 
447;  U.  S.  vs.  Hamilton,  9  Federal,  442;  Scott  vs.  United 
States,  172  U.  S.,  343. 

§  51a.  For  a  fact  case  under  Section  195,  see  Wel- 
sing  vs.  United  States,  218  Federal,  369. 

An  indictment  under  this  Section  need  not  describe 
the  article  contained  in  the  mail  package  with  the  same 
particularity  as  in  a  prosecution  for  forgery  or  lar- 
ceny, but  the  article  must  be  stated  and  sufficiently  de- 
scribed so  as  to  apprise  the  defendant  of  the  charge 
against  him  and  so  as  to  protect  him  against  a  second 
prosecution  for  the  same  offense.  An  indictment  which 
charged  that  a  letter  contained  "articles  of  value"  to 
wit,  "$12  in  money  of  the  IT.  S."  was,  sufficient  under 
this  statute  to  charge  an  offense.  Shaw  vs.'U.  S.,  180 
Federal,  348.  An  offense  under  this  Section  may  be 
prosecuted  in  either  the  district  where  article  "re- 
moved" or  the  one  into  which  the  article  is  taken  with 
the  evil  intent.    Perara  vs.  U.  S.,  221  Federal,  213. 

51aa.    Decoy  Letters. 

A  "test"  letter  is  protected  even  though  the  inspector 
testified  that  he  intended  to  withdraw  it,  McShann  vs. 
U.  S.  231  Fed.  923. 

See  also  Hanish  vs.  U.  S.  227  Fed.  584,  and  see  Sec. 
51. 


184  Federal  Criminal  Law  Procedure. 

51b.    Opening  Mail  Unauthorized. 
The  Act  of  June  15,  1917,  reinacted  that  provision  of 
the  statute  which  reads  as  follows: — 

"Except  dead  letter  office  or  with  a  search  warrant,"  no  one  is  author- 
ized to  open  a  letter." 

51c.    Injury  to  Letter  Boxes,  etc., 

Sec.  198  of  the  Code,  see  Penal  Code  herein,  was 
amended  by  the  Act  of  May  18,  1916,  so  as  to  include  the 
following: — 

"That  whosoever  shall  wilfully  or  maliciously  injure,  tear  down,  or 
destroy  any  letter  boxes  or  other  receptacle  intended  or  used  for  the 
receipt  or  delivery  of  mail  on  any  mail  route  or  shall  break  open  the 
same  or  shall  wilfully  or  maliciously  injure,  defraud"  or  destroy  any 
mail  deposited  therein," 

shall  be  fined  not  more  than  a  thousand  dollars  or  by 
three  years  imprisonment. 

This  act  together  with  the  decisions  of  the  Supreme 
Court  in  Rosen  vs.  U.  S.  245  U.  S.  467,  gives  complete 
protection  to  mail  until  it  actually  reaches  the  ad- 
dressee and  tends  to  overturn  the  case  of  U.  S.  vs.  Lee 
90  Fed.  256,  cited  under  Sec.  52. 

See  also  the  case  of  U.  S.  vs.  Lophansky,  232  Fed.  297, 
which  holds  that  one  commits  no  federal  offense  by  tak- 
ing mail  that  was  left  "on"  the  mail  box. 

Mail  is  property  and  the  Postoffice  Department  has 
full  power  to  protect  it,  Packas  vs.  U.  S.  240  Fed.  350. 

By  Sec.  194  of  the  Postmaster  General's  regulations 
it  is  provided  that  any  receptacle  intended  for  mail  is 
protected  by  the  federal  law. 

§  52.  Stealing,  Secreting,  Embezzling,  Etc.,  Mail 
Matter  or  Contents.— Section  194  of  the  new  Code  is  in 
substitution  of  Sections  3892  and  5469  and  5470  of  the 
Code  of  1878,  and  by  the  wideness  or  latitude  of  punish- 
ment and  generality  of  its  phraseology,  includes  all  of 
the  offenses  enumerated  in  the  old  sections.  3892  was 
limited  originally  to  the  taking  of  mail  for  the  purpose 
of  prying  into  the  business  or  secrets  of  another,  and 
5469  originally  was  for  the  taking  of  mail  matter  by 
theft  or  other  unlawful  method  by  any  person  not  em- 
ployed in  the  postal  service.  It  is  only  by  being  famil- 
iar with  Section  5467  and  3891  and  3890,  as  heretofore 


Postal  Crimes.  165 

treated,  that  we  conclude  that  5469  related  to  persons 
other  than  postal  employees.  Under  the  terms  of  Sec- 
tion 194,  as  it  now  reads,  one  who,  by  misrepresentation 
or  pretense,  secures  from  a  post-office  mail  directed  and 
intended  for  another,  is  liable  to  the  penalties  of  that 
section.  For  instance,  one  who  calls  for  the  mail  of 
another,  representing  that  he  has  authority  to  receive 
the  same,  and  thereafter  commits  unlawful  act  with  the 
mail,  is  subject  to  the  penalty.  The  authorities  cited 
supra  in  the  construction  of  Section  195  are  applicable  to 
decoy  and  test  letters  under  5469  of  the  old  statute  or 
194  of  the  new  statute.  The  authority  of  the  United 
States  vs.  Meyers,  142  Federal,  907,  with  reference  to 
5469,  seems  to  be  applicable  to  the  needs  of  an  indict- 
ment and  proof  under  new  Section  194.  The  indictment 
must  allege  that  the  stealing,  taking,  or  obtaining  by 
fraud  of  any  letter  or  other  mail  matter  and  the  embez- 
zlement of  the  same  or  its  contents  must  be  either 
fraudulent  or  unlawful,  and  an  indictment  which  leaves 
this  open  to  inference  is  defective.  Thus,  an  indictment 
which  by  inference  may  allow  the  letter  charged  to  have 
been  taken  to  have  been  delivered  to  and  received  by  the 
defendant  through  a  mutual  mistake,  is  insufficient. 
Mail  matter  that  has  been  delivered  by  the  Postal  De- 
partment to  its  address  thereby  passes  from  the  protec- 
tion of  the  Federal  Government.  A  letter  addressed  to 
John  Smith,  in  care  of  Jones,  and  delivered  to  Jones, 
and  thereafter  stolen  or  embezzled  or  treated  unlawfully, 
cannot  be  made  the  subject  of  the  above  article.  It  must 
still  be  in  the  custody  of  the  Post-office  Department  be- 
fore one  can  be  prosecuted  under  the  Federal  statutes 
for  an  unauthorized  and  unlawful  act  with  reference 
thereto.  Thus,  a  letter  delivered  by  the  Post-office  De- 
partment to  the  desk  of  the  addressee,  upon  which  it 
was  placed  by  the  mail  carrier  in  the  absence  of  any  one 
to  receive  it,  is  not  protected  by  any  Federal  statute.  In 
United  States  vs.  Safford,  66  Federal,  942,  one  was  ar- 
rested upon  an  information  charging  him  with  embez- 
zling a  letter  containing  an  article  of  value,  which  had 
been  in  the  United  States  Post-office  at  St.  Louis  and 


166  Federal,  Criminal  Law  Procedure. 

had  not  been  delivered  to  the  person  addressed,  but  that 
the  letter  had  been  placed  by  the  mail  carrier  upon  the 
desk  of  the  addressee,  from  whence  it  was  stolen  by  the 
defendant.  The  Court  held  that  Congress  only  intended 
to  secure  the  sanctity  of  the  mail  while  it  was  in  the 
custody  of  the  Postal  Department  en  route  from  the 
sender  to  the  person  to  whom  it  was  directed.  Beyond 
the  protection  of  the  mail  while  discharging  the  func- 
tions of  postal  service  with  respect  to  it,  the  Federal 
Government  has  no  rightful  power  or  legal  concern. 

Thus,  a  letter  directed  to  a  person,  care  Kimball  House, 
when  delivered  by  a  carrier  at  the  office  of  the  Kimball 
House,  is  delivered  to  the  person  to  whom  it  was  ad- 
dressed, within  the  meaning  of  the  law;  and  the  duty  of 
the  postal  authorities  with  respect  to  such  letter  hav- 
ing been  full  performed  in  accordance  with  the  direction 
of  the  sender,  a  subsequent  wrongful  taking  of  such  letter 
by  another  is  not  an  offense  under  said  section,  nor  one 
cognizable  by  the  Courts  of  the  United  States.  United 
States  vs.  Lee,  90  Federal,  256.  See  also  U.  S.  vs.  Mc- 
Cready,  11  Federal,  225. 

It  is  not  thought  that  United  States  vs.  Hilbury,  re- 
ported in  29  Federal,  705,  is  good  authority.  The  judge 
in  that  case  charged  the  jury  in  substance  that  a  letter 
in  care  of  F.  Kressel,  directed  to  A,  and  delivered  by  the 
mail  carrier  to  Kressel,  and  taken  by  an  authorized  per- 
son from  Kressel  after  such  delivery,  was  a  violation  of 
3892.  Clearly,  the  letter  had  been  delivered,  so  far  as 
the  Postal  Department  was  concerned,  and  the  protec- 
tion and  custody  and  jurisdiction  of  the  United  States 
had  ceased.  The  entire  weight  of  authority  is  against 
the  decision  in  29  Federal,  just  above  cited,  and  the  fol- 
lowing decisions  support  the  doctrine  of  66  and  90  Fed- 
eral, cited  supra: — United  States  vs.  Persons,  2  Blatchf., 
104;  United  States  vs.  Driscoll,  1  Lowell,  303;  U.  S.  vs. 
Sander,  6  McClain,  598;  U.  S.  vs.  Thomas,  28  Federal 
Cases  16471;  U.  S.  vs.  Huilsman,  94  Federal,  486;  U.  S. 
vs.  McCready,  cited  supra,  11  Federal,  225,  must  be  dis- 
tinguished from  the  weight  of  authority,  and  it  is  thought 
that   the   learned  judge  there   used  expressions   ill   ad- 


Postal  Crimes.  167 

visedly  that  seem  to  support  the  decision  in  the  29  Fed- 
eral. 

It  must  also  be  borne  in  mind  that  one  who  secures 
lawfully  from  the  Postal  Department  a  letter  belonging 
to  an  other,  and  who  thereafter  forms  the  design  to  com- 
mit an  unauthorized  act,  as  denned  by  the  statute,  with 
reference  thereto,  is  not  amenable  to  the  Federal  statute. 
It  is  true  that  the  intent  is  usually  presumed  from  the  act 
itself,  Reynolds  vs.  U.  S.,  98  U.  S.,  145,  but  if  it  could  be 
clearly  shown  that  the  original  taking  was  lawful  and 
thereafter  the  unlawful  design  was  formed,  the  Federal 
offense  would  be  incomplete.  United  States  vs.  Smith, 
11  Utah,  433;  United  States  vs.  Wilson,  44  Federal,  593; 
United  States  vs.  Inabnet,  41  Federal,  130.  This  intent 
should  be  left  to  the  jury  by  proper  charge,  not  only  when 
raised  by  the  evidence  of  the  defense,  but  upon  the  Gov- 
ernment's  case  itself;  in  other  words,  it  is  a  part  of  the 
facts  that  must  be  proven  by  the  Government,  inferred 
though  it  may  be  by  the  jury  from  the  facts  of  the  case. 

Section  194,  as  now  enacted,  reads  as  follows: 

Whoever  shall  steal,  take,  or  abstract,  or  by  fraud  or  deception 
obtain,  from  or  out  of  any  mail,  postoffice,  or  station  thereof,  or  other 
authorized  depository  for  mail  matter,  or  from  a  letter  or  mail  carrier, 
any  letter,  postal-card,  package,  bag,  or  mail,  or  shall  abstract  or  re- 
move from  any  such  letter,  package,  bag,  or  mail,  any  article  or  thing 
contained  therein,  or  shall  secrete,  embezzle,  or  destroy  any  such 
letter,  postal-card,  package,  bag,  or  mail,  or  any  article  or  thing  con- 
tained therein;  or  whoever  shall  buy,  receive,  or  conceal,  or  aid  in 
buying,  receiving,  or  concealing,  or  shall  unlawfully  have  in  his  posses- 
sion, any  letter,  postal-card,  package,  bag,  or  mail,  or  ony  article  or 
thing  contained  therein,  which  has  been  so  stolen,  taken,  embezzled,  or 
abstracted,  as  herein  described,  knowing  the  same  to  have  been  so 
stolen,  taken,  embezzled,  or  abstracted;  or  whoever  shall  take  any  let- 
ter, postal  card,  or  package,  out  of  any  post-office  or  station  thereof,  or 
out  of  any  authorized  depository  for  mail  matter,  or  from  any  letter 
or  mail  carrier,  or  which  has  been  in  ony  post-office  or  station  there- 
of, or  other  authorized  depository,  or  in  the  custody  of  any  letter  or 
mail  carrier,  before  it  has  been  delivered  to  the  person  to  whom  it 
was  directed,  with  a  design  to  obstruct  the  correspondence,  or  try  to 
pry  into  the  business  or  secrets  of  another,  or  shall  open,  secrete,  em- 
bezzle, or  destroy  the  same,  shall  be  fined  not  more  than  two  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both." 


168  Federal  Criminal  Law  Procedure. 

The  following  cases  may  be  of  interest  relating  to  the 
original  three  sections  that  this  section  is  substituted 
for: — United  States  vs.  Trosper,  127  Federal,  476;  Brown 
vs.  United  States,  148  Federal,  379;  United  States  vs. 
Jones,  80  Federal,  513;  United  States  vs.  Hall,  76  Fed- 
eral, 566;  United  States  vs.  Thomas,  69  Federal,  588; 
Grimm  vs.  United  States,  156  U.  S.,  604;  Goode  vs.  United 
States,  159  U.  S.,  663;  Montgomery  vs.  United  States,  162 
U.  S.,  400;  Hall  vs.  United  States,  168  U.  S.,  632;  Scott  vs. 
United  States,  172  U.  S.,  343;  United  States  vs.  Dorsey,  40 
Federal,  752;  Walster  vs.  United  States,  42  Federal,  891; 
United  States  vs.  Wilson,  44  Federal,  593. 

It  will  be  noticed  that  the  new  section  leaves  out  the 
word  "value"  with  reference  to  any  article  so  contained 
in  the  mail  matter.  It  simply  uses  the  word  "article" 
without  stating  that  the  same  shall  be  of  value,  as  did 
the  old  law. 

§  52a.  An  indictment  under  Section  5470,  which  is  a 
part  of  new  Section  194,  which  alleges  that  the  defend- 
ant did  wilfully,  etc.,  receive  from  a  certain  described 
bank  notes  of  a  specified  value,  which  had  been  knowing- 
ly, etc.,  stolen  from  the  mails  and  that  the  defendant,  at 
the  time  and  place  of  receiving  and  concealing,  etc.,  knew 
the  same  to  have  been  unlawfully  and  feloniously  stolen 
and  carried  away  from  the  mails  of  the  United  States, 
imported  that  the  concealment  by  defendant  was  done 
with  an  unlawful  intention  and  was  therefore  not  ob- 
jectionable for  failure  to  charge  the  intent  or  the  name 
of  the  owner.    Thompson  vs.  U.  S.,  202  Federal,  401. 

52aa.    Mail  Protected. 

Eosen  vs.  U.  S.,  245  U.  S.,  467;  U.  S.  vs.  Lophansky, 
232  F.  297;  Pakas  vs.  U.  S.,  240  F.  350. 

§  53.  Obscene,  Etc.,  Matter,  Non-mailable,  and  Pen- 
alties.— Section  211  of  the  new  Code  reads  as  follows: 

"Every  obscene,  lewd,  or  lascivious,  and  every  filthy  book,  pamphlet, 
picture,  paper,  letter,  writing,  print,  or  other  publication  of  an  inde- 
cent character,  and  every  article  or  thing  designed,  adapted,  or  in- 
tended for  preventing  conception  or  producing  abortion,  or  for  any 
indecent  or  immoral  use;  and  every  article,  instrument,  substance, 
drug,  medicine,  or  thing  which  is  advertised  or  described  in  a  man- 


Postal  Crimes.  169 

ner  calculated  to  lead  another  to  use  or  apply  it  for  preventing  con- 
ception or  producing  abortion,  or  for  any  indecent  or  immoral  pur- 
pose; and  ever  written  or  printed  card,  letter,  circular,  book,  pam- 
phlet, advertisement,  or  notice  of  any  kind  giving  information  directly 
or  indirectly  where,  or  how,  or  from  whom,  or  by  what  means  any 
of  the  hereinbefore-mentioned  matters,  articles  or  things  may  be  ob- 
tained or  made,  or  where  or  by  whom  any  act  or  operaton  of  any 
kind  for  the  procuring  or  producing  of  abortion  will  be  done  or  per- 
formed, or  how  or  by  what  means  conception  may  be  prevented  or 
abortion  produced  whether  sealed  or  unsealed,  and  every  letter,  packet, 
or  package,  or  other  mail  matter  containing  any  filthy,  vile  or  indecent 
thing,  device,  or  substance;  and  every  paper,  writing,  advertisement, 
or  representation  that  any  article,  instrument,  substance,  drug,  medi- 
cine or  any  thing  may,  or  can  be,  used  or  applied  for  preventing  con- 
ception or  producing  abortion,  or  for  any  indecent  or  immoral  purpose, 
and  every  description  calculated  to  induce  or  incite  a  person  to  so 
use  or  apply  any  such  article,  instrument,  substance,  drug,  medicine,  ot 
thing,  is  hereby  declared  to  be  nonmailable  matter  and  shall  not  be 
conveyed  in  the  mails  or  delivered  from  any  post-office  or  by  any 
letter  carrier.  Whoever  shall  knowingly  deposit,  or  cause  to  be  de- 
posited for  mailing  or  delivery,  anything  declared  by  this  section  to 
be  non-mailable,  or  shall  knowingly  take,  or  cause  the  same  to  be 
taken  from  the  mails,  for  the  purpose  of  circulating  or  disposing  there- 
of, or  of  aiding  in  the  circulation  of  disposition  thereof,  shall  be  fined 
not  more  than  five  thousand  dollars,  or  imprisoned  not  more  than 
five  years,  or  both." 

This  takes  the  place  of  3893  of  the  old  statute.  It  con- 
tains one  word,  the  exact  limits  and  meaning  of  which 
when  used  in  criminal  law,  do  not  seem  to  be  well  defined 
by  any  line  of  decisions.  The  word  "filthy,"  as  used  in 
the  new  section,  has  never  before  been  used  in  3893  or 
any  of  its  predecessors.  The  Century  Dictionary  defines 
filthy  to  mean,  foul,  dirty,  nasty,  polluted,  low,  con- 
temptible, mean,  and  gives  as  synonyms,  impure,  cor- 
rupt, gross.  In  Reg.  vs.  Wood,  5  El.  and  Bl.,  49,  85  E. 
C.  L.,  49,  shows  what  was  held  not  to  be  filthy.  In  United 
States  against  Benedict,  165  Federal,  page  222,  the  Court 
said  that  the  present  statute,  (that  is,  3893),  did  not  pro- 
tect against  "offensive,  filthy,  and  vulgar  language," 
when  conveyed  by  a  sealed  wrapper,  unless  the  language 
will  have,  or  may  have,  an  immoral  effect  in  a  sense  related 
to  sexual  impurity  upon  those  into  whose  hands  the  writ- 
ten language  may  come.    The  Courts  all  along  have  al- 


170  Federal  Criminal  Law  Procedure. 

most  universally  construed  Section  3893  to  be  directed 
against  such  impurity  as  related  to  sexual  matters  and 
gave  rise  to  libidinous  thought.  If  the  addition  of  the 
word  "filthy"  in  the  new  statute  broadens  the  construc- 
tion, it  will  be  welcome  indeed,  because  under  the  pres- 
ent authorities,  the  old  section  permitted  a  perfect  sluice 
of  vulgarities  and  coarseness  and  obscenity  to  pass 
through  the  United  States  mails  unchallenged  and  un- 
prosecuted.  For  instance,  the  courts  have  held  that  the 
use  of  the  word  "son-of-a-bitch"  in  a  sealed  envelope 
is  not  an  offense.  It  would  seem  that  under  the  diction- 
ary definition  of  the  word  filthy,  as  quoted  above,  the 
law  would  now  comprehend  the  use  of  the  word  "bitch" 
and  the  phrase  "son-of-a-bitch"  and  "whore"  "prosti- 
tute" and  a  great  many  others  that  are  used  in  an  abu- 
sive way  toward  the  recipient  of  the  mail.  This,  how- 
ever, remains  to  be  seen,  and  the  construction  of  the 
new  statute  will  be  welcomed  if  it  now  inhibits  the  use 
of  such  expressions. 

The  use  of  the  word  "filthy"  in  the  statute  imports 
that  Congress  intended  to  prohibit  a  class  of  offenses 
that  the  Courts  had  failed  to  pronounce  unlawful  under 
the  old  section.  U.  S.  vs.  Dempsey,  188  Federal,  450. 
and  this  question  should  be  submitted  to  the  jury. 

The  term  filthy  added  to  the  statute  may  be  properly 
defined  as  nasty,  dirty,  vulgar,  indecent,  offensive  to  the 
moral  sense,  morally  depraving  and  debasing,  and  after 
such  definition  the  final  determination  is  with  the  jury. 
Tyomies  Publishing  Co.  vs.  U.  S.,  211  Federal,  386. 
An  indictment  under  211  must  surely  be  as  certain  in 
its  allegations  as  the  decisions  demanded  under  3893, 
and  must  therefore,  allege  that  the  defendant  knowinar- 
ly  deposited  or  caused  to  be  deposited,  and  the  best  prac- 
tice would  seem  to  be  to  allege  that  he  so  deposited  or 
caused  to  be  deposited  with  knowledge  of  the  contents 
or  import  of  the  writing  or  printing,  as  the  case  may  be. 
Such  allegation  is  not  specially  required  under  the  au- 
thority of  Price  vs.  United  States,  165  U.  S.,  page  308; 
41  Law.  Ed.,  page  727,  but  it  is  decidedly  the  best  plead- 
ing.   Rosen  vs.  United  States,  161  U.  S.,  29;  40  Law  Ed., 


Postal  Crimes.  171 

606.  The  mailing  of  obscene  matter  in  answer  to  decoy 
requests,  such  requests  being  made  by  postal  inspectors 
for  the  purpose  of  fixing  absolutely  the  guilt  of  the  send- 
er or  of  an  advertiser,  are  in  violation  of  the  statute, 
and  may  be  the  basis  of  prosecutions.  Price  against 
United  States,  cited  supra,  and  Rosen  vs.  United  States, 
cited  supra;  Shepherd  vs.  United  States,  160  Federal, 
page  584.  The  indictment  must  also  allege  that  the  mat- 
ter is  non-mailable.  United  States  vs.  Clifford,  104  Fed- 
eral, 296,  but  the  indictment  need  not  set  out  the  obscene 
matter.  An  allegation  that  the  matter  is  too  obscene, 
lewd,  and  lascivious  to  be  set  out  and  made  a  part  of  the 
records  of  the  Court  will  satisfy  the  statute.  105  Fed- 
eral, page  59;  Tubbs  vs.  United  States,  94  Federal,  356; 
and  the  Rosen  and  Price  cases  cited  supra. 

The  old  question  as  to  whether  a  private  sealed  letter 
came  within  the  meaning  of  the  statute  was  definitely 
settled  by  the  Supreme  Court  in  the  case  of  Grimm  vs. 
United  States  156  U.  S.,  604,  which  was  followed  by 
Andrews  vs.  United  States,  162  U.  S.,  420,  which  dis- 
tinctlv  held  that  the  mailing  of  a  private  sealed  letter 
containing  obscene  matter,  on  the  envelope  of  which 
nothing  appeared  except  the  name  and  address,  was  an 
offense  within  the  meaning  of  the  statute. 

Recurring  again  to  the  sort  of  obscenity  at  which  the 
statute  is  directed,  we  find  the  case  of  United  States  vs. 
Lamkin.  73  Federal,  459,  where  it  was  held  that  the 
statute  did  not  punish  for  the  mailing  of  a  letter  which 
was  written  for  the  purpose  of  seduction  or  to  obtain 
a  meeting  for  an  immoral  purpose,  provided  such  letter 
was  free  from  lewd,  and  indecent  language,  expressions, 
or  words.  This  case  seems  to  be  in  conflict  with  the 
great  weight  of  authority,  and  with  the  spirit  of  the 
statute.  Assignations  attempted  to  be  made  through  the 
United  States  mail,  however  chaste  the  language,  are  in 
direct  violation  of  the  statute.  United  States  vs.  Mar- 
tin, 50  Federal  Rep.,  918.  In  the  Martin  case,  a  letter 
from  a  man  to  an  unmarried  woman,  proposing  a  clan- 
destine trip  to  a  neighboring  town  and  a  return  the  next 
morning,  the  man  to  pay  expenses  and  five  dollars  be- 


172  Federal  Criminal  Law  Procedure. 

sides,  was  held  to  be  an  obscene  letter  within  the  mean- 
ing of  the  Act.  In  line  with  the  Martin  case,  seems  to 
be  the  case  of  Dunlop  vs.  United  States,  165  U.  S.,  486, 
in  which  it  was  held  that  newspaper  advertisements  giv- 
ing information  where  courtesans  could  be  found,  came 
within  the  Act,  although  such  advertisements  were 
couched  in  the  most  chaste  and  elegant  language.  In 
Swearingen  vs.  United  States,  161  U.  S.,  446;  40  Law  Ed., 
765,  the  Supreme  Court  held  that  the  words  "obscene," 
"lewd,"  and  "lascivious,"  as  used  in  the  statute  signi- 
fied that  form  of  immorality  which  has  relation  to  sexual 
impurity,  and  have  the  same  meaning  given  them  at  Com- 
mon Law  in  prosecutions  for  obscene  libels,  and,  there- 
fore, do  not  extend  to  language  although  it  may  be  ex- 
ceedingly coarse  and  vulgar,  and  plainly  libelous,  if  it 
has  not  a  lewd,  lascivious,  and  obscene  tendency,  calcu- 
lated to  corrupt  and  debauch  the  mind  and  morals. 
This  definition  supports,  it  would  seem,  the  line  of  au- 
thorities upholding  the  Martin  decision,  cited  supra,  and 
also  limits  the  purpose  of  the  original  statute  to  such  ob- 
scenity. In  the  Swearingen  case,  the  prosecution  was  for 
the  mailing  of  a  paper  which  contained  the  coarsest  pos- 
sible language  toward  another,  and  the  language  would 
unquestionably  have  been  construed  "filthy,"  had  that 
word  been  included  in  the  statute,  unless  the  Courts  are 
to  determine  that  the  word  filthy,"  as  used  in  the  new 
statute,  was  purposelessly  used  by  Congress.  To  the 
same  effect  is  United  States  vs.  O'Donnell,  165  Federal, 
218;  United  States  vs.  Benedict,  165  Federal,  221;  Konda 
vs.  United  States,  166  Federal,  91.  The  question  as  to 
whether  the  matter  is  obscene  within  the  meaning  of 
the  law,  as  defined  by  the  judge,  must  be  submitted  to 
the  jury.  It  is  quite  true  that  there  are  some  decisions 
to  the  contrary,  but  all  of  the  reasoning,  as  well  as  the 
weight  of  authority,  seems  to  be  that  the  question  should 
be  left  to  the  jury,  because  it  is  a  question  of  fact.  In 
Konda  vs.  United  States,  166  Federal,  93,  the  Court  said: 

"In  our  judgment,  a  defendant  in  a  criminal  case  has  the  absolute 
right  to  require  that  the  jury  decide  whether  or  not  the  evidence 
sustains  each  and  every  material  allegation  of  the  indictment.     Mate- 


Postal  Crimes.  173 

rial  allegations  are  allegations  of  fact,  and  each,  as  much  as  any  other, 
enters  into  a  verdict  of  guilty.     If  the  judge  may  decide  that  one  or 
another   material   allegation   is   proven,   he   may  decide   that      all   are 
proven,  and  so  direct  a  verdict  of  guilty.     In  a  civil  case,  the  judge 
may  exercise  the  power  of  directing  a  verdict  for  the  plaintiff,  when 
there  is  no  conflict  in  the  evidence,  and  the  only  inference  that  can 
be  drawn  by  reasonable  minds  as  to  the  ultimate  facts  in  issue  favors 
the   plaintiff.     This   power,   we   opine,   grew   out   of   the   practical    ad- 
ministration of  the  fundamental  power  of  review  on  a  motion  for  a 
new  trial,  the  findings  of  the  jury.     In  the  civil  cases  above  supposed, 
if  the  jury  should  return  a  verdict  for  the  defendant,  the  judge  would 
set  it  aside;    and  he  would  continue  to  set  aside  verdicts  in  that  case 
until  one  should  be  returned  that  was  in  accord  with  the  undisputed 
facts;     so  he  cuts  off  the  possibility  of  useless  verdicts  by  directing 
in  the  first  instance,  the  jury  to  return  the  only  verdict  he  will  let 
stand.     But  in  a  criminal  case,  if  the  jury  returns  a  verdict  for  the 
defendant,  the  judge,  no  matter  how  contrary  to  the  evidence  he  may 
think  the  verdict  is,  cannot  set  it  aside  and  order  a  new  trial.     There- 
fore, since  the  judge  is  without  power  to  review  and  overturn  a  ver- 
dict of  not  guilty,  there  is  no  basis  on  which  to  claim  the  power  to 
direct  a  verdict  of  guilty.     Our  conclusion  is  that  an  accused  person 
has  the  same  right  to  have  twelve  laymen  pronounce  upon  the  truth 
or  falsity  of  each  material  averment  in  the  indictment,  if  the  evidence 
against  him  is  clear  and  uncontradicted,  as  he  unquestionably  would 
have   if   it  were   doubtful   and   conflicting.     Inasmuch   as   jurors   are 
rightly  trusted  in  close  and  difficult  cases,  to  maintain  the  peace  and 
dignity    of   organized   society,   surely   they   may   be   relied   on   in   th«» 
plain  and  simple  ones." 

In  Knowles  vs.  United  States,  170  Federal,  page  410, 
the  Court  assumes  a  similar  position,  and  says: 

"Upon  this  record,  the  only  question  before  us  is,  whether  the  ar- 
ticle is  obscene,  lewd,  or  lascivious,  within  the  meaning  of  the  statute. 
If  it  was  fairly  open  to  the  construction  of  falling  within  either  of 
these  classes,  it  was  the  plain  duty  of  the  Court  to  submit  the  ques- 
tion of  its  character  to  the  jury.  In  all  indictments  under  this  statute, 
there  is  a  preliminary  question  for  the  Court  to  say  whether  the 
writing  could,  by  any  reasonable  judgment,  be  held  to  come  within 
the  prohibition  of  the  law.  That  is  like  the  question  of  law  in  a 
case  of  negligence,  as  to  whether  there  is  any  substantial  evidence 
of  negligence.  It  leaves  a  wide  field  for  the  sound,  practical  judgment 
of  the  jury  to  determine  the  true  character  of  the  writing  and  its 
probable  effect  upon  the  minds  of  readers.  Whenever  reasonable 
minds  might  fairly  reach  different  conclusions  as  to  the  character 
of  the  writing,  it  is  the  duty  of  the  Court  to  submit  the  question  to 
the  jury." 


174  Federal  Criminal  Law  Procedure. 

and  cites  Rosen  vs.  United  States,  161  U.  S.,  29;  United 
States  vs.  Bennett,  16  Blatchf.,  342;  United  States  vs. 
Davis,  38  Federal,  326;  United  States  vs.  Harmon,  45 
Federal,  418. 

Under  a  plea  of  not  guilty,  each  and  every  necessary 
element  alleged  in  the  bill  of  indictment  must  be  proven 
beyond  a  reasonable  doubt  by  the  sovereignty,  and  each 
of  such  elements,  and  the  proof  thereof  to  the  measure 
indicated,  is  to  the  satisfaction  of  the  jury,  and  any  per- 
emptory charge  against  the  defendant  is  violative  of  his 
rights. 

It  is  the  duty  of  the  Court  to  define  the  words  obscene, 
lewd,  lascivious  and  filthy,  etc.,  as  used  in  the  statute 
and  then  leave  it  for  the  "jury  to  sav  whether  the  facts 
show  such  obscenity,  lewdness,  lasciviousness,  etc.  Bots- 
ford  vs.  U.  S.,  215  Federal,  510;  U.  S.  vs.  Kennerly,  209 
Federal,  119;  Tyomies  vs.  U.  S.,  211  Federal,  389. 

It  is  entirely  immaterial  that  one  who  mails  impure 
matter,  within  the  meaning  of  the  statute,  has  a  pure 
motive;  if  the  matter  mailed  is  obscene,  he  is  guilty.  So, 
also,  the  freedom  of  religion,  and  freedom  of  the  press, 
cannot  be  used  as  defenses  to  prosecutions  under  these 
statutes.  Knowles  vs.  United  States,  170  Federal,  411; 
Davis  vs.  Beason,  133  U.  S.,  333;  33  Law  Ed.,  637. 

In  118  Federal,  page  495,  United  States  vs.  Moblen- 
ski,  the  Court  held  in  substance  that  the  matter  must 
tend  to  corrupt  the  morals  of  the  person  to  whom  it  is 
addressed.  This  decision  is  not  thought  to  be  supported 
by  the  best  authority.  The  addressee  might,  as  a  matter 
of  fact,  be  so  morally  obtuse  as  to  be  beyond  further  in- 
jury or  corruption,  but  the  letter  might  fall  into  the  hands 
of  innocent  persons;  and  the  test  is,  whether  the  contents 
would  bring  the  blush  of  shame  to  the  cheek  of  virtue,  not 
whether  the  contents  would  bring,  the  blush  of  shame 
to  the  cheek  of  vice.  See  160  Federal  page  700,  United 
States  vs.  Musgrave,  which  holds  that  the  law  relates 
to  the  reading  matter,  and  not  to  the  state  of  the  mind 
of  the  receiver.  Under  the  Common  Law,  and  for  time 
immemorial  it  was  an  offense  to  utter  obscene  language 
in  public  places,  or  near  a  dwelling  house,  or  in  the  pres- 


Postal  Crimes.  175 

ence  of  women,  arid  the  purpose,  therefore,  of  the  Fed- 
eral statute,  it  would  seem,  is  to  protect  the  innocent  and 
pure  against  having  obscenity  intruded  upon  their  no- 
tice. 

The  section,  so  far  as  it  relates  to  the  prevention  of 
conception  and  articles  intended  therefor,  would  require 
that  bill  of  indictment  describe  the  thing  advertised. 
United  States  vs.  Pupke,  133  Federal,  243.  A  somewhat 
broader  holding  is  in  United  States  vs.  Somers,  164  Fed- 
eral, 259.  See  also  Lee  vs.  United  States,  156  Federal, 
948.  It  is  also  held  that  a  corporation  may  violate  this 
section.    United  States  vs.  Herald,  159  Federal,  page  296. 

In  Ackley  vs.  U.  S.,  200  Federal,  218,  it  was  held  that  a 
decoy  letter  from  a  postoffice  inspector  relating  to  that 
portion  of  the  statute  designed  to  prevent  the  mails  from 
the  conveying  of  information  as  to  where  or  from  whom 
instruments  or  information  to  prevent  conception  might 
be  obtained,  might  be  made  the  basis  of  prosecution,  but 
that  such  postoffice  inspector  was  an  accessory  and  must 
be  treated  as  such.  The  letter  of  inquiry  mailed  by  the 
inspector  and  the  answer  thereto  are  both  admissible.  U. 
S.  vs.  Kline,  201  Federal,  954.  And  it  is  entirely  imma- 
terial that  such  letters  would  upon  their  face  give  infor- 
mation as  to  their  true  meaning  to  a  stranger.  U.  S.  vs. 
Blenholm,  208  Federal,  492.  And  a  letter  which  is  an 
answer  to  a  prospective  patient  may  be  set  forth  in  the 
indictment  without  explanatory  words  to  show  wherein 
it  gave  the  inhibited  information.  Clark  vs.  U.  S.,  202 
Federal,  740. 

An  indictment  which  contains  no  copy  of  the  letter,  no 
averment  that  it  was  indecent;  that  it  was  unfit  to  be 
spread  upon  the  record  of  the  Court,  and  no  allegation 
of  its  date,  of  the  name  signed  to  it,  of  the  place  where 
it  was.  mailed,  or  of  any  words,  figures,  or  marks  which 
it  contains  whereby  it  can  be  identified,  does  not  state 
the  facts  which  constitute  the  offense  charged  with  such 
clearness  and  certainty  as  to  enable  the  defendant  to 
avail  himself  of  a  conviction  or  acquittal  thereon  as  de- 
fense to  a  second  prosecution  for  the  same  offense,  and 
is  insufficient  in  face  of  a  motion  in  arrest  of  judgment, 


176  Federal  Criminal  Law  Procedure. 

and  the  office  of  a  bill  of  particulars  is  not  to  make  a 
bad  indictment  good.    Floren  vs.  U.  S.,  186  Federal,  961. 

See  Stayton  vs.  U.  S.,  213  Federal,  224,  as  to  allegation 
of  knowledge  in  the  indictment.  Under  this  statute, 
knowledge,  of  course  is  an  essential  ingredient  of  the  of- 
fense. In  other  words,  if  one  should  deposit  in  the  United 
States  mails  any  article  inhibited  by  the  statute  it  would 
not  be  an  offense  unless  such  deposit  was  knowingly  done. 

An  indictment  which  charges  that  the  defendant  receiv- 
ed from  the  Postoffice  Department  a  certain  letter,  a  copy 
of  which  was  set  out,  and  that  thereafter  in  response 
thereto  did  knowingly,  etc.,  deposit,  etc.,  for  mailing  and 
delivery  a  certain  envelope  containing  a  letter  giving  in- 
formation as  he,  the  defendant  well  knew,  as  to  how  when, 
where,  of  whom  and  by  what  means  certain  articles,  etc., 
intended  to  prevent  conception,  might  be  obtained,  was 
not  demurrable  for  failure  to  allege  that  defendant  knew 
or  believed  the  articles  mentioned  in  the  letter  were  de- 
signed or  intended  to  prevent  conception.  U.  S.  vs.  Cur- 
rey,  206  Federal,  322.  This  case  also  holds  that  this  sec- 
tion does  not  apply  to  a  letter  describing  and  advertising 
certain  articles  in  a  manner  calculated  to  lead  another  to 
use  and  apply  such  articles  for  the  prevention  of  concep- 
tion, if  it  does  not  give  information  as  to  where  they  can 
be  obtained. 

It  is  reversible  error  to  ask  highly  prejudicial  and  im- 
proper questions  as  to  division  of  fees  in  abortion  cases 
upon  trial  of  indictment  charging  the  furnishing  of  in- 
formation as  to  where  an  abortion  might  be  secured. 
Bombarger  vs.  U.  S.,  219  Federal,  841.  A  reading  of  the 
case  will  raise  doubt  in  the  mind  as  to  whether  the  ques- 
tion was  really  improper.  The  defendant  was  being 
tried  for  a  similar  offense  and  his  agreement  to  divide 
fees  with  another  would  seem  to  be  relevant  in  showing, 
not  only  intent,  but  willingness,  and  also  as  tending  to 
throw  light  upon  true  meaning  of  defendant's  letters. 

A  deposit,  under  this  Section,  in  a  United  States  post- 
office,  is  a  deposit  in  a  post-office  box.  Shepherd  vs. 
United  States,  160  Federal,  584. 


Postal  Chimes.  177 

By  an  amendment  to  an  Act  in  May,  1908,  Congress 
provided  that  the  term  "indecent,"  as  used  in  the  old 
Section  3893,  shall  include  matter  of  a  character  tending 
to  incite  arson,  murder,  or  assassination;  but  it  is  not 
thought  that  any  statement  in  the  new  Code  would  au- 
thorize such  meaning  for  the  word  "indecent"  in  Section 
211.  Federal  Statutes  Annotated,  Supplement  1909,  page 
525.  Other  cases  bearing  upon  this  statute  are  the  fol- 
lowing:— Evans  vs.  United  States,  153  U.  S.,  587;  Grimm 
vs.  United  States,  156  U.  S.  608;  Einker  vs.  United  States, 
151  Federal,  755;  in  re  Rapier,  143  U.  S.,  110;  Barnes 
vs.  U.  S.,  166  Federal,  113;  United  States  vs.  Musgrave, 
160  Federal,  700;  Hansom  vs.  United  States,  157  Fed- 
eral, 749;  United  States  vs.  Harris,  122  Federal,  551; 
United  States  vs.  Moore,  104  Federal,  78;  United  States 
vs.  Chase,  135  U.  S.,  117;  United  States  vs.  Reid,  73 
Federal,  289;  United  States  vs.  Clark,  43  Federal,  574. 

Postmark. — In  U.  S.  vs.  Noelke,  1  Fed.  Rep.,  426,  which 
was  followed  in  U.  S.  vs.  Williams,  3  Federal,  484,  the 
Court  held  that  the  postmark  upon  the  envelope  made  a 
prima  facie  case  that  the  letter  had  been  deposited  in 
the  United  States  mail. 

53a.  Obscenity,  Scurrilousness,  Indecency,  Knowl- 
edge, Etc. — To  be  a  violation  of  Sec.  211  the  letter  must 
disclose  its  evil  character,  Sales  vs.  U.  S.,  258  F.  596. 

An  indictment  is  not  invalid  because  it  adds  the  word 
indecent,  though  that  word  be  not  in  the  statute,  Lock- 
hart  vs.  U.  S.,  250  F.  610. 

It  is  not  an  offense  to  mail  a  sealed  obscene  letter  to 
one's  self  was  held  in  U.  S.  vs.  Reinheimer,  233  F.  545. 
But  this  decision  seems  to  me  to  be  in  conflict  with  the 
fundamentals  upon  which  the  reasoning  with  reference 
to  this  statutes  has  been  based.  It  is  not  a  question,  al- 
together, of  whether  the  matter  would  corrupt  the  ad- 
dressee; the  broader  and  safer  rule  seems  to  be  that  that 
is  an  offense  under  this  statute,  when  the  matter  would 
bring  the  blush  of  shame  to  the  cheek  of  virtue.  A  letter 
addressed  to  one's  self  and  carried  through  the  mail 
might  never  reach  its  destination,  by  some  accident  its 
contents  might  be  exposed  enroute. 

12 


178  Federal  Criminal  Law  Procedure. 

Judge  Ray  held  in  U.  S.  vs.  Klauder,  240  F.  501,  that 
a  letter  which  described  the  immoralities  of  priests  was 
not  necessarily  violative  of  this  section  and  that,  upon 
demurrer,  the  court  can  decide  whether  the  matter  is  so 
clearly  innocent  that  the  question  should  not  be  submit- 
ted to  the  jury. 

On  the  other  hand  the  Circuit  Court  of  Appeals,  in 
Parish  vs.  U.  S.,  247  F.  40  held  that  a  letter  to  a  woman 
threatening  exposure  of  her  compromising  position  with 
a  man  could  not,  as  a  matter  of  law,  be  held  not  to  be 
obscene,  etc.,  within  the  meaning  of  this  statute. 

Knowledge  must  be  alleged  always  in  the  indictment,- 
Moens  vs.  IT.  S.,  267  Fed.  318.  It  is  not  difficult  for  one 
to  imagine  how  an  innocent  person  might,  without  know- 
ing the  character  of  a  writing,  mail  it,  but  such  a  person 
should  not  be  held  guilty  if  there  was  no  knowledge  of 
the  character  of  the  writing. 

For  a  judicial  definition  of  the  word  "indecent"  and 
the  word  "filthy"  as  used  in  the  present  statute  see  U.  S. 
vs.  Davidson,  244  Fed.  523. 

The  character  of  the  addressee  is  not  the  subject  of 
the  inquiry.  In  other  words  it  is  immaterial  what  sort 
of  a  character  the  addressee  may  be  in  order  to  mal^e  the 
communication  offensive;  it  is  the  words,  the  subject 
matter  and  not  the  person,  Bobbins  vs.  U.  S.,  229  Fed. 
987. 

For  an  indictment  and  the  necessary  ingredients  there- 
of to  plead  an  offense  under  this  statute,  for  the  pre- 
senting of  conception  see  Wetzel  vs.  U.  S.,  233  Fed.  984. 

The  indictment  must  describe  the  offense,  as  if  one 
is  indicted  for  conveying  information  with  respect  to  the 
performance  of  an  abortion,  there  must  be  no  uncertainty 
in  pleading  that  he  was  really  willing  to  perform  such  au 
operation;  that  is  there  must  be  the  indication  of  a  posi- 
tive intent  that  the  act  will  be  done  and  not  merely  that 
it  may  perhaps  be  performed,  Bours  vs.U  .  S.,  229  Fed. 
960. 

The  conclusion  of  an  indictment  may  be  disregarded. 
Frisbie  vs.  U.  S.,  157  U.  S.  160. 


Postal  Crimes.  179 

For  the  essentials  of  an  indictment  and  an  expression 
as  to  when  snch  essentials  amount  to  "due  process,"  see 
Fontana  vs.  U.  S.,  262  Fed.  283. 

§  53b.  Indictment. — Ordinarily  documents  essential 
to  the  charge  of  crime  must  be  sufficiently  described  to 
make  the  contents  thereof  known,  yet  matter  too  of- 
fensive or  indecent  to  be  spread  on  the  record  may  be 
referred  to  in  a  manner  sufficient  to  identify  it  and  advise 
the  accused  of  the  document  intended  without  setting 
forth  its  contents  and  this  course  is  applicable  to  an  in- 
dictment under  this  statute.  Bartel  vs.  U.  S.,  227,  U.  S. 
427.  An  indictment  may  set  out  a  part  only  of  a  printing. 
Winters  vs.  U.  S.,  201  Federal  845.  An  omission  from  an 
indictment  may  be  satisfied  by  a  bill  of  particulars  which 
will  be  granted  as  a  matter  of  course.  Coomer  vs.  U.  S., 
213  Federal,  2;  Bartel  vs.  U.  S.,  227,  U.  S.,  427.  U.  S.  vs. 
Kennedy,  209  U.  S,  219. 

I  believe  that  the  whole  instrument  in  which  is  con- 
tained the  alleged  improper  matter,  whether  book,  pam- 
phlet, paper,  or  writing,  should  be  submitted  to  the  jury 
and  included  by  them  in  their  consideration  as  to  whether 
the  alleged  matter  is  unmailable.  U.  S.  vs.  Kennerly,  209 
Federal,  119;  Clark  vs.  U.  S.,  211  Federal  917. 

§  53c.  Matter  Intended  to  Incite  Arson,  Murder  or 
Assassination. — The  Act  of  March  4,  1911,  added  a  most 
unusual  and  seemingly  incongruous  meaning  to  the  word 
"indecent"  as  used  in  this  section,  such  amendment  be- 
ing, "That  the  term  'indecent'  within  the  intendment  of 
this  section  shall  include  matter  of  a  character  tending 
to  incite  arson,  murder  or  assassination."  36  Stats.  L. 
1335,  page  302,  1st  Vol.  1912,  Supp.  Fed.  Stats.  Ann. 

§  53d.  Prize  Fight  Films.— On  July  31,  1912,  the  Con- 
gress passed  an  Act  providing  as  follows: 

"§  1.  That  it  shall  be  unlawful  for  any  person  to 
deposit  or  cause  to  be  deposited  in  the  United  States 
mails  for  mailing  or  delivery  or  to  deposit  or  cause  to  bft 
deposited  with  any  express  company  or  other  common 
carrier  for  carriage,  or  to  send  or  carry  from  one  state 
or  territory  of  the  United  States  or  the  District  of  Co- 
lumbia  to  any  other   state  or  territory  of  the  United 


180  Federal  Criminal  Law  Procedure. 

States  or  the  District  of  Columbia,  or  to  bring  or  cause 
to  be  brought  into  the  United  States  from  abroad  any 
film  or  other  pictorial  representation  of  any  prize  fight 
or  encounter  of  pugilists,  under  whatever  name,  which  is 
designed  to  be  used  or  may  be  used  for  purposes  of  public 
exhibition. 

"§  2.  That  it  shall  be  unlawful  for  any  person  to  take 
or  receive  from  the  mails  or  any  express  company  or 
other  common  carrier,  with  intent  to  sell,  distribute,  cir- 
culate or  exhibit  any  matter  or  thing  herein  forbidden  to 
[sic]  be  deposited  for  mailing,  delivery  or  carriage  in 
interstate  commerce. 

"§  3.  That  any  person  violating  any  of  the  provisions 
of  this  Act  shall  for  each  offense,  upon  conviction  there- 
of, be  fined  not  more  than  one  thousand  dollars  or  sen- 
tenced  to  imprisonment  at  hard  labor  for  not  more  than 
one  year,  or  both  at  the  discretion  of  the  court."  37 
Stats.  L.  241,  page  326,  1914  Supp.  Fed.  Stats.  Ann. 

Manifestly  the  statute  is  directed  solely  at  the  sending 
of  such  prize  fight  films,  etc.,  as  are  intended  for  public 
exhibition  or  for  the  purpose  of  sale,  distribution  or  cir- 
culation, which  words  seem  to  be  broader  than  the  word 
exhibition.  The  sending  of  such  a  film  for  one's  own 
convenience  and  without  any  thought  of  exhibiting  or 
selling  or  circulating  the  same  would,  of  course,  not  be 
unlawful. 

The  statute  not  only  inhibits  the  sending  of  films  but, 
likewise  any  pictorial  representation,  which  would  in- 
clude photographs  of  any  other  reproduction  of  such  an 
encounter  or  exhibition  preserved  by  the  arts  of  science. 
It  is  not  thought  that  the  statute  would  prevent  the 
sending  of  films  or  pictorial  representations  of  a  simu- 
lated prize  fight.  In  other  words,  the  film  or  represen- 
tation, in  order  to  be  unlawful,  must  reproduce  a  genuine 
prize  fight,  that  is  a  fight  for  a  prize  or  title  or  belt  of 
championship,  and  must  be  an  encounter  between  pu- 
gilists. 

§  53d.d.  Paid  Editorial,  etc.  to  be  marked  "Advertise- 
ment."— Congress,  on  August  24,  1912,  passed  the  fol- 
lowing statute;  "That  all  editorial  or  other  reading  mat- 


Postal  Crimes.  181 

ter  published  in  any  such  newspaper,  magazine,  periodical 
for  the  publication  of  which  money  or  other  valuable 
consideration  is  paid,  accepted  or  promised,  shall  be 
plainly  marked  'advertisement.'  Any  editor  or  publish- 
er printing  editorial  or  other  reading  matter  for  which 
compensation  is  paid,  accepted  or  promised,  without  so 
marking  the  same,  shall,  upon  conviction  in  any  court 
having  jurisdiction,  be  fined  not  less  than  $50  nor  more 
than  $500."  37  Stats.  L.  553,  page  316,  1914  Supp.  Fed. 
Stats.  Ann. 

The  word  "such"  as  used  in  this  statute  relates  to 
publications  that  are  admitted  into  the  United  States 
mails  as  second  class  matter. 

This  section  is  not  unconstitutional  as  infringing  the 
freedom  of  the  press  and  depriving  one  of  property  with- 
out due  process  of  law.  Lewis  Publishing  Co.  vs.  Mor- 
gan, 229  U.  S.,  288. 

This  Act,  in  the  Section  immediately  preceding,  also 
provides  that  the  names  of  the  owners  of  the  publication, 
etc.,  shall  be  furnished  the  government  at  stated  periods, 
but  no  penalty  is  provided  for  a  failure  to  do  so,  save  and 
except  that  the  use  of  the  mails  shall  be  denied. 

53d.d.d.  Matter  Intended  to  Incite  Arson,  Murder  or 
Assassination,  Continued. — In  an  indictment  under  this 
Sec.  it  is  not  necessary  to  set  out  the  matter,  though  that 
is  the  proper  pleading,  U.  S.  vs.  "Wells,  262  Fed.  833. 

An  indictment  may  contain  a  count  under  Sec.  211  and 
a  count  under  Sec.  212. 

53d.d.d.d.  Espionage  Act. — During  the  world's  war 
which  begun  in  April  1917,  so  far  as  the  United  States  is 
legally  concerned,  the  Congress  passed  what  was  called 
an  Espionage  Act  and  the  following  cases  are  preserved 
in  the  reports  as  following  the  extent  of  such  legislation 
and  the  judicial  construction  thereof.  Debs  vs.  U.  S., 
249  U.  S.  211;  this  case  is  based  upon  the  obstruction  of 
recruiting. 

For  false  reports  and  statements,  Kirchner  vs.  U.  S., 
255  Fed.  301,  remarks  Ehuberg  vs.  U.  S.,  255  Fed.  865. 
Book  denouncing  patriotism,  Shaffer  vs.  IT.  S.,  255  Fed. 
886.    Insubordination,  Coldwe'l  vs.  U.  S.,  256  Fed.  805. 


182  Federal  Criminal  Law  Procedure. 

Expression  of  opinion,  Sandberg  vs.  U.  S.,  257  Fed.  643. 
Intent,  Schulze  vs.  U.  S.  259  Fed.  189.  Motion  picture, 
Goldenstein  vs.  U.  S.,  258  Fed.  908.  False  reports,  Foster 
vs.  U.  S.,  253  Fed.  481.  Public  address,  O'Hare  vs.  U. 
S.,  253  Fed.  538.  Examples,  Doe  vs.  U.  S.,  253  Fed.  903 
and  U.  S.  vs.  Binder,  253  Fed.  978;  Sugar  vs.  U.  S.,  252 
Fed.  79.  Indictment,  elements  and  essentials,  U.  S.  vs. 
Schutte,  252  Fed.  213.  Protection  of  Red  Cross,  U.  S. 
vs.  Nagler,  252  Fed.  217.  Obstructing  enlistment,  U.  S. 
vs.  Nearing,  252  Fed.  223.  Impeding  enlistment,  252  Fed. 
232.  Refusal  to  subscribe  to  loan  or  Red  Cross,  U.  S. 
vs.  Pape,  253  Fed.  270.  Means  of  support,  etc.,  U.  S.  vs. 
Schulze,  253  Fed.  377.  False  questions,  Pierce  vs.  U.  S., 
40  Sup.  Ct.  Rep.  205.  False  notarial  certificate,  U.  S.  vs. 
Blakeman,  251  Fed.  306.  Denouncing  war,  U.  S.  vs.  Bou- 
tin, 251  Fed.  313.  Family  conversation,  Harshfield  vs. 
U.  S.,  260  Fed.  659;  Goldman  vs.  U.  S.,  245  U.  S.  474. 
Publications,  U.  S.  vs.  Pierce,  245  Fed.  878.  False  state- 
ments, Moses  vs.  Patten,  244  Fed.  535.  Legitimate  criti- 
cism, Masses  vs.  Patten,  246  Fed.  24;  "Wolf  vs.  U.  S., 
259  Fed.  388;  U.  S.  vs.  Sugarman,  245  Fed.  605.  Insub- 
ordination, U.  S.  vs.  Kraft,  249F  ed.  920.  False  state- 
ments and  whole  seditious  act,  U.  S.  vs.  Hall,  248  Fed. 
150. 

53d.d.d.d.d.  The  prize  fight  film  act  was  declared  con- 
stitutional in  Webber  vs.  Freed  by  the  Supreme  Court  of 
the  United  States,  239  U.  S.  325.  * 

§  54.  Libelous  and  Indecent  Wrappers  and  Envel- 
opes, Etc. — Closely  akin,  and  for  the  same  practical  pur- 
pose to  Section  211,  is  Section  212  of  the  new  Code.  This 
section  was  the  result  of  a  series  of  acts,  which  resulted 
finally  in  the  Act  of  September,  1888,  First  Supplement, 
621,  which  is  practically  identical  with  the  new  Section. 
212.  Originally,  scurrilous  epithets  by  the  Act  of  1872, 
on  postal  cards  and  envelopes  were  alone  prohibited.  By 
the  Act  of  March  3,  1873,  the  word  " indecent"  was  add- 
ed; by  the  Act  of  July  12,  1876,  the  words  "lewd,  ob- 
scene, or  lascivious"  as  adjectives  and  the  words  "de- 
lineations, terms,  or  language"  as  nouns,  were  inserted; 


Postal  Crimes.  183 

and  finally,  by  the  Act  of  September  26,  1888,  Section  212 
reads  as  follows: 

"All  matter  otherwise  mailable  by  law,  upon  the  envelope  or  outside 
cover  or  wrapper  of  which,  on  any  postal  card  upon  which  any  de- 
lineations, epithets,  terms,  or  language  of  an  indecent,  lewd,  lascivious, 
obscene,  libelous,  scurrilous,  defamatory,  or  threatening  character, 
or  calculated  by  the  terms  of  manner  or  style  of  display  and  obviously 
intended  to  reflect  injurious  upon  the  character  or  conduct  of  another, 
may  be  written  or  printed  or  otherwise  impressed  or  apparent,  are 
hereby  declared  non-mailable  matter,  and  shall  not  be  conveyed  in 
the  mails  nor  delivered  from  any  post-office  nor  by  any  letter  carrier, 
and  shall  be  withdrawn  from  the  mails  under  such  regulations  as  the 
Postmaster  General  shall  prescribe.  "Whoever  shall  knowingly  deposit 
or  cause  to  be  deposited,  for  mailing  or  delivery,  anything  declared 
by  this  section  to  be  non-mailable  matter,  or  shall  knowingly  take 
the  same  or  cause  the  same  to  be  taken  from  the  mails  for  the  pur- 
pose of  circulating  or  disposing  of  or  aiding  in  the  circulation  or 
disposition  of  the  same,  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both." 

Every  decision  and  construction  of  the  Act  of  1888  is 
material  aid  in  understanding  the  present  law,  because, 
as  before  stated,  they  are  practically  identical. 

In  a  consideration  of  postal  statutes  and  particularly 
such  statutes  as  inhibit  the  use  of  this  utility  for  what 
Congress  has  called  improper  and  unlawful  purposes,  we 
must  bear  in  mind  that  an  unrestricted  use  is  not  one  of 
the  fundamental  rights  guaranteed  by  the  Constitution. 
Warren  vs.  U.  S.,  183  Federal,  718.  It  is  not  material 
whether  the  objectional  language  is  true  or  false  or 
whether  the  accused  was  actuated  by  public  spirit  or 
private  malice;  hence  the  offering  of  a  reward  upon  the 
outside  cover  of  a  piece  of  mail  which  reflects  injuriously 
upon  some  person  is  against  the  law.  Warren  vs.  United 
States,  183  Federal,  718. 

The  court  must  submit  to  the  jury  the  determination 
of  whether  or  not  a  delineation  or  other  display  is  calcu- 
lated to  reflect  injuriously  upon  the  character  of  the 
person  addressed.  The  reasons  for  this  are  just  as  strong 
as  those  urged  in  support  of  the  submission  of  any  other 
question  of  fact  upon  a  plea  of  not  guilty  to  the  jury. 
The  Court  cannot  determine,  as  a  matter  of  law,  that  any 


184  Federal,  Criminal  Law  Proceduee. 

particular  delineation  or  display  is  in  violation  of  the 
statute.  Of  course,  it  is  not  meant  to  here  indicate  that 
the  Court  may  not  express  his  opinion  thereon.  He  al- 
ways has  this  right. 

In  United  States  vs.  Dodge,  70  Federal,  235,  the  pro- 
prietor of  a  collection  agency  adopted  a  method  of  pro- 
ceeding by  which,  on  failure  of  debtors  to  pay  on  first 
demand,  a  dunning  letter  was  sent  through  the  mails,  en- 
closed in  a  pink  colored  envelope,  and  if  this  did  not 
receive  a  favorable  response,  another  letter  was  sent 
enclosed  in  a  black  envelope,  addressed  in  white  letters. 
The  purpose  of  these  letters  was  universally  known  to 
the  post-office  employees.  Having  been  arrested  on  a 
charge  of  violation  of  the  Act  of  September  26,  1888, 
in  respect  to  non-mailable  matter,  he  sued  out  a  writ  of 
habeas  corpus,  and  the  Court  held  that  the  use  "of  such 
envelopes  was  a  delineation  within  the  meaning  of  the 
statute,  and  that  whether  the  effect  was  to  reflect  in- 
juriously upon  the  character  or  conduct  of  the  addressee 
was  a  question  for  the  jury,  upon  a  trial  for  the  offense, 
for  which  reasons  the  prisoner  was  remanded.  While 
the  Court  did  not  pass  upon  the  identical  question  as  to 
whether  the  determination  of  the  injurious  character  of 
the  delineations  was  for  the  jury,  and  not  the  Court,  yet 
the  decision  is  strongly  persuasive.  In  United  States  vs. 
Brown,  43  Federal,  135,  upon  a  demurrer  to  an  indict- 
ment under  this  statute,  the  Court  said: 

"The  respondent  is  indicted  for  depositing  for  mailing  and  delivery 
matter,  upon  the  envelope  of  which  the  words  'Excelsior  Collection 
Agency'  were  printed  in  large  letters,  and  calculated  by  the  terms  ond 
style  of  display,  and  obviously  intended  to  reflect  injuriously  upon  the 

character  and  conduct  of  the  person  addressed To  make  a  matter 

non-mailable  and  to  constitute  the  offense,  that  the  delineation  is  cal- 
culated and  obviously  intended  to  so  reflect,  must  be  apparent  from 
an  inspection  of  the  envelope The  manner  of  display  might  in- 
dicate clearly  whether  the  words  were  placed  there  for  injurious  re- 
flection upon  that  person,  or  for  legitimate  transmission  of  the  con- 
tents of  the  envelope  through  the  mails Whether  the  display  of 

the  words  upon  the  envelope  would  support  the  averments  of  the  in- 
dictment, would  be  a  question  of  fact  for  a  jury." 

See  also  United  States  vs.  Olney,  38  Federal,  328. 


Postal  Crimes.  185 

What  Is  Outside  Cover  or  Wrapper?— A  very  interest- 
ing and  vital  question  is  raised  by  the  case  of  the  United 
States  vs.  Gee,  45  Federal,  194,  wherein  the  District 
Judge  held,  that,  "the  statute  applied  only  to  matter 
exhibited  upon  an  enclosing  wrapper  or  cover  and  not  to 
matter  which  is  contained  in  the  body  of  the  thing  mail- 
ed; that  the  statute  being  one  constituting  a  criminal 
offense,  it  cannot  be  extended  by  construction  to  cases 
where  there  is  no  wrapper  at  all,  even  though  such  cases 
may  be  within  the  reason  and  policy  of  the  enactment." 
This  decision  was  with  reference  to  a  case  arising  upon 
the  mailing  and  delivery  of  a  large  number  of  four 
page  printed  circulars  about  the  size  of  a  sheet  of  note 
paper,  upon  the  four  pages  of  which  was  printed  matter; 
being  an  account  of  certain  dealings  between  the  defend- 
ant and  another;  that  these  circulars,  as  deposited  for 
mailing  and  delivery,  had  no  separate  wrapper  or  cover 
over  them,  but  were  folded  twice  into  oblong  shape,  and 
the  postage  stamps  placed  upon  the  circulars  themselves. 

The  evident  purpose  of  the  statute  was  to  prevent  pa- 
trons of  the  Post-office  Department  from  sending  through 
the  mails  such  matter  as  would  or  might  easily  attract 
the  eye  of  the  distributing  or  handling  clerks,  by  reason 
of  its  being  uncovered.  It  is  submitted  that  an  attack 
upon  another  on  a  printed  page  of  a  newspaper  or  cir- 
cular, upon  which  page  the  clerk  or  clerks  must  look  to 
find  the  address  of  the  one  to  whom  the  paper  is  going  or 
must  be  delivered,  is  as  apt  to  injure  the  addressee  as 
though  the  matter  were  upon  a  postal  card  or  an  envelope, 
or  upon  a  cover  containing  a  newspaper,  and  that  the  one 
so  offending  placed  it  upon  the  outside  for  that  particular 
purpose.  The  Century  Dictionary,  in  defining  the  word 
"cover,"  says,  "It  is  something  which  is  laid,  placed, 
or  spread  over,  as  the  cover  of  a  box,  or  the  cover  of  a 
dish,  or  the  cover  of  a  bed,  or  the  cover  of  a  book."  It 
is  thought  that  the  cover  of  a  box,  a  dish,  a  bed,  or  a 
book,  is  a  part  of  the  article  itself,  and  thus,  the  cover 
of  a  box  is  a  part  of  a  box,  the  cover  of  a  dish  is  a  part 
of  the  dish,  the  cover  of  a  bed  is  a  part  of  the  bed,  and 
the  cover  of  a  book  is  a  part  of  a  book.    In  United  States 


186  Federal  Criminal  Law  Procedure. 

against  Burnell,  75  Federal,  824,  District  Judge  Woolson 
distinguishes  the  Gee  case,  and  disagrees  with  it.  The 
Burnell  case  was  an  indictment  against  the  proprietor  of 
a  collection  agency  for  having  mailed  and  caused  to  be 
mailed  a  certain  newspaper,  on  the  first  page  of  which  a 
motto  showed  that  its  purpose  was  to  collect  debts,  and  a 
large  part  of  the  paper  contained  notices  warning  the 
public  against  persons  alleged  to  have  failed  to  pay  their 
debts  or  asking  information  as  to  such  persons.  It  ap- 
peared that  when  an  account  was  sent  to  the  agency  for 
collection,  the  alleged  debtor  was  notified  that  if  not 
paid,  the  account  would  be  advertised  in  such  newspaper 
as  being  for  sale,  and  the  paper  contained  many  such  ad- 
vertisements. It  was  apparent  that  the  object  of  the 
paper  was  to  coerce  the  payment  of  money.  In  mailing 
the  paper,  where  more  than  one  copy  was  to  be  sent  to 
the  same  post-office,  the  name  of  the  persons  to  whom 
the  copies  were  to  be  delivered  were  placed  on  the  front 
(outside)  page.  Then  the  papers  for  the  office  are  rolled 
together  in  a  package  in  one  wrapper,  and  on  that  wrap- 
per was  written  the  name  of  the  post-office.  When  the 
package  reached  the  post-office,  the  office  employees  tore 
off  the  package  wrapper,  that  they  might  find  the  names 
of  the  persons  to  whom  the  papers  were  to  be  delivered, 
and  every  clerk  or  carrier  attached  to  that  office  through 
whose  hands  a  copy  thus  sent  had  to  pass,  must  look  at 
this  front  (outside)  page  to  ascertain  the  name  of  the 
addressee.  Upon  this  state  of  facts,  Judge  Woolson  held 
that  "if  the  obnoxious  matter  is  on  the  'outside  cover,' 
the  statute  is  made  against  its  mailing,  even  though  such 
cover  be  not  an  'enclosing  wrapper  or  cover,'  but  over- 
spreads or  overlays  the  pamphlet  or  paper  mailed." 

This  opinion  is  interesting  and  exhaustive,  and  clearly 
upholds  that  construction  of  the  statute  which  makes  it 
an  offense  to  publish  upon  the  outside  page  of  a  newspa- 
per statements  that  reflect  injuriously  upon  the  character 
of  the  addressee. 

Judge  Evans,  in  United  States  vs.  Higgins,  194  Feder- 
al, 539,  chooses  and  follows  the  Gee  case  rather  than  the 
Burnell  case,  placing  his  decision  upon  the  rule  that  laws 


Postal  Crimes.  187 

which  create  a  crime  ought  to  be  so  explicit  that  all  men 
subject  to  their  penalties  may  know  of  the  acts  it  is  their 
duty  to  avoid,  and  before  a  man  can  be  punished  his 
case  must  be  plainly  and  unmistakably  within  the  statute. 
Duns  and  Postal  Cards.— In  United  States  against 
Smith,  69  Federal,  971,  the  following  language  has  been 
held  to  come  within  the  Act,  when  upon  a  postal-card: 
"You  have  been  righting  time  all  along I  will  gar- 
nishee and  foreclose,  but  I  dislike  to  do  this  if  you  will 
be  half  white."  In  United  States  vs.  Davis,  38  Federal, 
326,  the  following  was  held  to  be  a  violation:  "You  are 
sharp.  All  of  you  are  on  the  beat."  In  United  States  vs. 
Olney,  38  Federal,  328,  the  Court  submitted  the  following 
language  to  the  jury,  and  the  jury  held  that  it  was  a  vio- 
lation, to  wit:  "Mr.  Editor:  I  though  that  you  were 
publishing  a  paper  for  the  wheel,  but  I  see  nothing  but 
rotten  democracy.  I  am  a  republican  and  a  wheeler,  and 
you  can  take  your  paper  and  democracy  and  go  to  hell 
with  it."  So  also,  the  following  were  held  to  be  viola- 
tions: "Your  rent  was  due  Thursday,  February  25,  1892, 
and  has  not  been  paid,  and  if  not  paid  by  Thursday, 
March  3,  1892,  I  will  place  the  matter  in  the  hands  of  an 
officer,"  United  States  vs.  Elliott,  51  Federal,  807.  "You 
have  promised,  and  do  not  perforin,  and  I  see  very  plain- 
ly you  do  not  intend  to  pay  any  attention  to  my  letters 
or  your  agreements,"  U.  S.  vs.  Simmons,  61  Federal,  640. 
In  United  States  vs.  Boyle,  40  Federal,  664,  the  Court 
held  that  this  language,  to  wit,  was  not  a  violation: 
"Please  call  and  settle  account  which  is  long  past  due, 
and  for  which  our  collector  has  called  several  times,  and 
oblige, ' '  but  in  the  same  decision  the  Court  held  that  the 
statement,  "If  it  is  not  paid  at  once,  we  shall  place  the 
same  with  our  lawyer  for  collection,"  was  not  mailable, 
and  was  a  violation.  For  other  cases  bearing  upon  this 
section,  see  United  States  vs.  Pratt,  27  Federal,  Cases 
No.  16082;  United  States  vs.  Jarvis,  59  Federal,  357; 
in  re  Barber,  75,  Federal,  980;  United  States  vs.  Smith, 
11  Federal,  663;  ex  parte  Doran,  32  Federal,  76;  U.  S.  vs. 
Durant,  46  Federal,  753;  U.  S.  vs.  Loftin,  12  Federal, 
671;  U.  S.  vs.  Elliott,  51  Federal,  807. 


i88  Federal  Criminal  Law  Procedure. 

Of  course,  when  the  matter  is  obscene,  lewd,  or  las- 
civious, then  the  authorities  cited  under  Section  211  are 
applicable. 

See  also  Griffin  vs.  U.  S.,  248  F.  6,  and  U.  S.  vs.  David- 
son, 244  F.  523,  which  treats  of  the  different  phases  of 
these  statutes;  U.  S.  vs.  Anderson,  268  F.  696  also  offers 
some  suggestions  on  the  indictment;  see  also  U.  S.  vs. 
Pendergrast  with  reference  to  postcards. 

§  55.  Use  of  the  Mails  for  Fraudulent  Purposes. — 
The  reliability,  speed,  and  universality  of  the  con- 
veniences of  the  post-office  establishment  affords  a  reve- 
nue-bringing vehicle  for  the  unscrupulous.  Many  sorts 
of  frauds  and  schemes  and  artifices  have,  from  time  to 
time,  flourished  for  a  season.  A  proposition  attractively 
stated  in  print,  and  addressed  to  a  specific  person,  seems 
to  contain  much  more  magnetism  than  spoken  words  or 
general  advertising.  Just  what  per  cent  of  the  inhabi- 
tants of  the  United  States  are  credulous,  has  perhaps 
never  yet  been  determined,  but  the  success  of  the  fakir 
would  seem  to  indicate  that  a  very  large  part  of  the 
people,  while  they  may  not  believe  everything  they  see, 
do  believe  nearly  everything  they  read,  especially  if  it  be 
addressed  directly  to  them.  Section  5480  of  the  old  Code 
was  an  Act  intended  to  bring  to  justice  those  who  made 
this  improper  use  of  the  mails.  On  March  2,  1889,  25 
Stat,  at  Large,  873,  I  Vol.  Sup.  694,  this  section  was 
amended,  broadening  and  bettering  it. 

Section  215  of  the  new  Code  contains  all  of  the  ele- 
ments of  the  last  amendment  with  some  additional  words 
and  eliminations  that  make  the  Act  comparatively  com- 
plete. The  new  Section  also  makes  the  punishment  com- 
mensurate with  the  offense,  the  penalties  of  the  old  stat- 
ute being  entirely  too  light.    Section  215  reads  as  follows: 

"Whoever,  having  devised  or  intending  to  devise  any  scheme  or 
artifice  to  defraud,  or  obtaining  money  or  property  by  means  of  false 
or  fraudulent  pretenses,  representations  or  promises,  or  to  sell,  dis- 
pose of,  loan,  exchange,  alter,  give  away,  distribute,  supply,  or  furnish 
or  procure  for  unlawful  use  any  counterfeit  or  spurious  coin,  bank  note, 
paper  money,  or  any  obligation  or  security  of  the  United  States,  or  of 
any  State,  Territory,  municipality,  company,  corporation,  or  person, 
or   anything  represented  to  be   or   intimated   or  held   out   to  be   such 


Postal  Chimes.  189 

counterfeit   or   spurious   article,   or   any  scheme   or   artifice   to   obtain 
money  by  or  through  correspondence,  by  what  is  commonly  called  the 
'saw-dust  swindle'  or  'counterfeit-money  fraud,'  or  by  dealing  or  pre- 
tending to   deal   in   what  is   commonly   called    'green    articles.'   'green 
coin,'    'green   goods,'    'bills,'    'paper    goods,'   'spurious   Treasury   notes,' 
United  States  goods,'  'green  cigars,'  or  any  other  names  or  terms  in- 
tended to  be  understood  as  relating  to  such  counterfeit   or  spurious 
articles,  shall,  for  the  purpose  of  executing  such  scheme  or  artifice  or 
attempting  to  do  so,  place,  or  cause  to  be  placed,  any  letter,  postal 
card,  package,  writing,  circular,  phamphlet,  or  advertisement,  whether 
addressed  to  any  person  residing  within  or  outside  the  United  States, 
in  any  post-office,  or  station  thereof,  or  street  or  other  letter  box  of 
the  United  States,  or  authorized  depository  for  mail  matter,  to  be  sent 
or  delivered  by  the  post-office  establishment  of  the  United  States,  or 
shall  take  or  receive  any  such  therefrom,  whether  mailed  within   or 
without  the  United  States,  or  shall  knowingly  cause  to  be  delivered 
by  mail  according  to  the  direction  thereon,  or  at  the  place  at  which 
it  is  directed  to  be  delivered  by  the  person  to  whom  it  is  addressed, 
any  such  letter,  postal  card,  package,  writing,  circular,  phamphlet,  or 
advertisement,  shall  be  fined  not  more  than  one  thousand  dollars,  or 
imprisoned  not  more  than  five  years,  or  both." 

Elements  of  the  Offense. — The  indictment  must  charge 
and  the  proof  must  show,  (a)  the  devising  of  a  scheme  or 
artifice  to  defraud;  (b)  that  such  scheme  or  artifice  to 
defraud  is  to  be  effected  by  opening  or  intending  to  open 
correspondence  with  such  other  person  or  persons 
through  the  post-office  establishment  or  by  inciting  such 
other  persons  to  open  communication  with  them;  and. 
(c)  that  a  letter  or  packet  or  some  other  mail  matter 
enumerated  in  the  statute  must  be  deposited  or  caused 
to  be  deposited  for  mailing  and  delivery  in  the  United 
States  mail.  United  States  vs.  Long,  68  Federal,  348; 
Milby  vs.  U.  S.,  109  Federal,  638;  U.  S.  vs.  Post,  113 
Federal,  852;  Horman  vs.  U.  S.,  116  Federal,  350;  Hume 
vs.  U.  S.,  118  Federal,  689;  Stuart  vs.  U.  S.,  119  Federal, 
89;  Ewing  vs.  U.  S.,  136  Federal,  53;  Brown  vs.  U.  S.. 
143  Federal,  60;  Rumble  vs.  U.  S.,  143  Federal,  772. 

Rimmerman  vs.  U.  S.,  186  Federal,  387;  Horn  vs.  U.  S., 
182  Federal,  721;  Humes  vs.  U.  S.,  182  Federal,  485.  The 
elements  must  be  affirmatively  charged  on  by  the  Court 
and  found  by  the  jury.    Smith  vs.  U.  S.  208  Federal,  133. 

Whether  the  element  which  I  have  called  "b"  is  to  be 
present  in  violations  under  the  section,  remains  to  be 


190  Federal,  Criminal  Law  Procedure. 

seen,  because  the  old  section  differed  from  the  new  in  that 
the  old  contained  the  words  "to  be  effected  by  either 
opening  or  intending  to  open  correspondence  or  com- 
munication with  any  person,   or  by  inciting  such 

person  or  any  person  to  open  communication  with  the 
person  so  devising  or  intending,"  which  the  new  does 
not  contain.  The  new  section  simply  demands,  (1)  the 
formation  of  a  scheme  or  artifice  to  defraud;  (2)  "shall 
for  the  purpose  of  executing  such  scheme  or  artifice,  .... 

place  or  cause  to  be  placed,  any  letter,  etc., to  be 

sent  or  delivered  by  the  post-office  establishment."  It 
thus  would  seem,  in  the  absence  of  the  words  "other 
person,"  that  one  might,  in  the  execution  of  a  scheme 
to  defraud,  wherein  the  use  of  the  mails  was  contem- 
plated, as  required  by  the  statute,  devise  a  scheme,  with- 
in the  meaning  of  the  statute,  so  as  to  subject  himself 
to  the  penalty  of  the  statute,  and  only  use  the  mail  in 
addressing  communications  to  himself.  This  was  not 
possible  under  the  old  statute.     In  Erbaugh  vs.  United 

States,  173  Federal,  434,  the  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit  held  that  one  who  devises  a  fraudu- 
lent scheme  to  be  effected  by  opening  or  intending  to 
open  correspondence  or  communication  with  himself,  by 
means  of  the  post-office  establishment  of  the  United 
States,  is  guilty  of  no  offense  under  5480.  The  elements, 
therefore,  of  an  indictment  under  the  new  statute,  are 
the  same  as  those  under  the  old  statute,  with  the  possible 
exception,  as  indicated  above,  that  one  may,  under  the 
new  statute,  be  guilty  of  the  offense,  even  though  he  use 
the  mail  only  for  the  purpose  of  addressing  himself,  and 
not  for  addressing  his  intended  victim  or  victims. 

The  Courts  have  construed  the  new  section  with  ref- 
erence to  the  element  b  and  have  held  as  I  indicated  that 
I  felt  they  would  hold.  In  other  words,  under  the  new 
statute  it  is  not  necessary  that  the  scheme  or  artifice  to 
defraud  should  have  contemplated  as  a  part  of  itself  the 
further  idea  that  the  post-office  establishment  should  be 
used.  There  are  but  two  elements  of  the  statute  under 
discussion  and  they  are  the  elements  a  and  c,  namely  the 
devising  of  a  scheme  or  artifice  to  defraud,  and  the  plac- 


Postal  Crimes.  19  L 

ing  or  causing  to  be  placed  for  transmission  and  delivery 
a  letter  or  packet  in  the  United  States  mails.  U.  S.  vs. 
Young,  215  Federal,  268;  U.  S.  vs.  Goldman,  207  Federal, 
1002;  U.  S.  vs.  Young,  232  U.  S.,  155;  IT.  S.  vs.  Maxey, 
200  Federal,  1001. 

Broadly  speaking,  the  section  ''includes  everything  de- 
signed to  defraud  by  representations  as  to  the  past  or 
present,  or  suggestions  and  promises  as  to  the  future. 

The  significant  fact  is  the  intent  and  purpose   It 

was  with  the  purpose  of  protecting  the  public  against  all 
such  intentional  efforts  to  despoil  and  to  prevent  the 
post-office  from  being  used  to  carry  them  into  effect,  that 
this  statute  was  passed;  and  it  would  strip  it  of  value  to 
confine  it  to  such  cases  as  disclose  an  actual  misrepresen- 
tation as  to  some  existing  fact,  and  exclude  those  in 
which  is  only  the  allurement  of  a  specious  and  glittering- 
promise."  5  Fed.  Stats.  Durland  vs.  United  States,  161 
U.  S.  306.  See  also  Horman  vs.  U.  S.,  116  Federal,  350. 
In  U.  S.  vs.  Sherwood,  177  F.,  596,  Court  simplifies  in- 
dictment. In  Foster  vs.  U.  S.,  178  Federal,  165,  C.  C.  A., 
held  scheme  need  not  be  repeated  in  second  and  succeed- 
ing counts,  if  laid  well  in  first  and  appropriately  referred 
to. 

Actual  misrepresentation  is  unnecessary  provided  the 
representations  that  were  made  were  intended  and  calcu- 
lated to  deceive  and  defraud,  McCarthy  vs.  U.  S.,  187 
Federal,  117,  though  "  puffing "  is  not  a  violation,  that  is 
to  say  use  of  extravagant  statements  is  not  necessarily  an 
offense  particuliarly  if  the  party  himself  believes.  Har- 
rison vs.  U.  S.,  200  Federal,  662.  Neither  is  a  scheme 
that  is  visionary  necessarily  fraudulent,  Sandels  vs.  U. 
S.,  213  Federal,  569.  It  must  be  a  scheme  to  defraud  the 
addressee  and  must  be  "scheme"  or  "device"  and  an 
offer  to  sell  loaded  dice  and  marked  cards  is  not  such  a 
scheme.    Stockton  vs.  IT.  S.,  205  Federal,  462. 

Threatening  Letter. — A  scheme  to  extort  money  by 
threatening  to  injure  the  reputation  and  character  of 
others  by  accusing  them  of  heinous  crimes  in  default  of 
payment  of  a  large  sum  of  money  to  the  accusing,  is  a 
scheme  to  defraud,  within  the  meaning  of  this  section. 


192  Fedeeal  Criminal  Law  Procedure. 

Fed.  Stats.  Ann.,  5,  page  976.  Horman  vs.  United  States, 
116  Fed.  350,  which  affirms  the  lower  court  in  the  case 
of  the  United  States  vs.  Horman,  118  Federal,  780. 

A  scheme  to  secure  money  from  one  whose  photograph 
was  secured  in  a  compromising  position  with  a  woman, 
under  threat  that  the  photograph  would  be  published,  is 
within  the  statute.  United  States  vs.  Goldman,  207  Fed- 
eral, 1002.    Affirmed  in  Goldman  vs.  U.  S.,  220  Federal, 

57.  ' 

Matrimonial  agency,  good  indictment,  see  Glinn  vs.  U. 
S.,  177  Federal,  679. 

Ordering  Goods  Without  Intention  to  Pay. — A  fruitful 
source  of  revenue  for  this  class  of  frauds  has  been  the 
use  of  the  mails  in  ordering  goods  and  merchandise,  for 
which  they  did  not  intend  to  pay.  The  Courts  have  very 
justly  held  that  such  acts  evidence  the  formation  of  a 
scheme  within  the  meaning  of  this  section,  and  the  intent 
to  not  pay  is  drawn  from  the  facts  of  the  particular,  case, 
as,  for  instance,  misrepresentation  as  to  the  solvency  of 
the  person  or  firm  ordering,  misstatement  as  to  the  sort  of 
business  engaged  in,  speedy  sale  of  the  goods  and  mer- 
chandise when  received  at  a  price  below  cost  or  at  cost, 
and  other  facts  that  evidence  no  legitimate  intent  to  en- 
gage in  a  legitimate  business.  United  States  vs.  Wood- 
son, 35  Federal,  358;  United  States  vs.  Staples,  45  Fed- 
eral, 195.  It  must  be  borne  in  mind  that  the  intent  not 
to  pay  must  exist  before  the  credit  is  sought — must  pre- 
cede the  order  for  the  goods.  United  States  vs.  Wootten, 
29  Federal,  702. 

In  United  States  vs.  Evans,  153  U.  S.,  584,  Mr.  Justice 
Brown  says: 

"If  a  person  buys  goods  on  credit  in  good  faith,  knowing  that  he 
is  unable  to  pay  for  them  at  the  time,  but  believing  that  he  will  be  able 
to  pay  for  them  at  the  maturity  of  the  bill,  he  is  guilty  of  no  offense, 
even  if  he  be  disappointed  in  making  such  payment.  But  if  he  should 
purchase  them  knowing  that  he  will  not  be  able  to  pay  for  them, 
and  with  an  intent  to  cheat  the  vendor,  this  is  a  plain  fraud,  and  made 
punishable  as  such  by  statutes  in  many  states." 

A  scheme  to  sell  false  certificates  to  old  soldiers  is  a 
violation.    Blanton  vs.  U.  S.,  213  Federal,  320.    Ordering 


Postal  Crimes.  193 

whiskey  with  no  intention  to  pay  and  securing  the  bill  of 
lading  by  false  representations  and  sending  a  check  that 
there  was  no  intention  should  be  paid,  constitute  a  scheme 
within  the  meaning  of  the  statute.  Charles  vs.  U.  S.,  213 
Federal,  707.  The  making  of  a  false  financial  statement 
to  a  commercial  agency  with  knowledge  that  it  was  false 
and  that  it  would  be  used  as  a  basis  for  the  sale  of  goods 
on  credit  is  an  offense  under  this  statute.  Todd  vs.  U.  S., 
221  Federal  205;  Scheinberg  vs.  U.  S.,  213  Federal,  758. 
Selling  stock  in  a  corporation  for  the  alleged  promotion 
of  the  wireless  telegraph  by  false  representations  is  a 
misuse  of  the  mails.  Parker  vs.  U.  S.,  203  Federal,  950. 
The  selling  of  cheap  books  by  representation  of  excessive 
value,  etc.,  is  false,  even  though  matter  of  opinion.  Unit- 
ed States  vs.  Farmer,  218  Federal,  929. 

Indictment. — It  is  absolutely  necessary  that  the  indict- 
ment allege  the  sort  of  a  scheme  or  artifice  which  sort 
must  include  a  determination  to  use  the  Post-office  estab- 
lishment, and  in  addition  must  allege  that  the  defendant 
deposited  or  caused  to  be  deposited  in  the  Post-office 
for  mailing  and  delivery,  mail  matter,  in  pursuance  of 
the  scheme. 

It  is  true  that  proof  under  this  allegation  will  support 
a  conviction  if  it  shows  that  the  defendant's  agent  de- 
posited the  matter,  and  this  even  though  the  defendant 
may  have  been  in  another  district.  In  Hume  vs.  United 
States,  118  Federal,  689,  which  was  a  case  under  the  old 
statute,  when  the  punishment  made  the  offense  a  misde- 
meanor, Judge  Shelby,  speaking  for  the  Circuit  Court  of 
Appeals,  held  that  even  assuming  that  the  offense  is  a 
felony,  the  presence  of  the  defendant  at  the  time  the  let- 
ters are  mailed,  in  furtherance  of  a  scheme  denounced  by 
the  statute,  is  not  necessary  to  make  him  a  principal  in 
the  crime.  So,  also,  in  United  States  vs.  Fleming,  18 
Federal,  907,  it  was  held  that  it  was  not  necessary,  in 
order  to  make  out  the  offense,  that  the  defendant  actual- 
ly, with  his  own  hands,  placed  a  letter  or  packet  in  the 
post-office.  If  the  proof  show  that  it  was  done  through 
his  agency  or  direction,  by  an  agent  or  employee,  em- 
ployed and  directed  for  that  purpose,  it  is  sufficient  to 

13 


194  Federal  Criminal  Law  Procedure. 

meet  the  allegations  of  the  bill  and  the  demands  of  the 
statute. 

It  should  also  be  borne  in  mind  in  this  connection  that 
under  the  authority  of  United  States  vs.  Loring,  91  Fed- 
eral, 881,  which  seems  to  have  been  generally  followed,  it 
is  not  necessary  to  set  out  all  of  the  letters  in  full  in 
the  indictment,  nor  to  give  the  substance  of  their  con- 
tents; nor  is  it  necessary  that  it  should  appear  from  the 
letters  that  they  were  part  of  the  fraudulent  scheme.  The 
indictment  may  make  a  general  allegation  that  there 
were  various  and  sundry  and  diver's  letters  deposited  and 
caused  to  be  deposited  to  divers  and  sundry  persons  to 
the  grand  jurors  unknown,  if  such  allegations  be  true, 
and  then  set  out  particularly  and  accurately  one  letter, 
and  if  the  defense  desires  to  know  the  names  and  ad- 
dresses upon  the  letters  covered  in  the  blanket  portion  of 
the  indictment,  they  may  obtain  the  same  from  the  prose- 
cuting officer  by  a  proper  request  for  a  bill  of  particulars, 
addressed  to  the  Court. 

A  letter  set  out  particularly  in  the  indictment  will  sup- 
port a  charge  under  the  statute,  even  though  the  letter 
may  be  ever  so  formal,  provided  the  letter  was  sent  by 
the  defendant  with  a  view  of  executing  his  scheme  to 
defraud.  Durland  vs.  United  States,  161  U.  S.,  306.  Let- 
ters, however,  which  do  not  seem  to  have  been  written 
for  the  purpose  of  accomplishing  any  fraud,  are  not  an 
offense,  of  course.  United  States  vs.  Ryan,  123  Federal, 
634;  United  States  vs.  Owens,  17  Federal,  72;  Stewart 
vs.  U.  S.,  119  Federal,  89.  Similar  letters  to  the  one  set 
out  in  the  bill  are  always  competent  testimony,  and  may 
be  introduced  on  the  question  of  intent.  United  States 
vs.  Watson,  35  Federal,  358;  and  under  the  authority  of 
the  United  States  vs.  Sauer,  88  Federal,  249,  the  venue  of 
the  prosecution  is  determined  by  the  point  of  mailing  the 
letter  or  the  packet  and  prosecution  must  be  had  in  the 
district  in  which  the  letter  or  packet  was  mailed.  The 
Circuit  Court  of  Appeals  for  the  Ninth  Circuit,  speaking 
through  Judge  Wolverton,  in  Walker  vs.  United  States, 
152  Federal,  111,  determined  that  all  letters  intended  in 
some  way  to  be  utilized  in  connection  with  the  scheme, 


Postal  Crimes.  195 

are  admissible,  and  quotes  in  support  of  that  doctrine, 
the  expression  of  Justice  Brewer  in  the  Durland  case, 
cited  supra,  in  these  words: 

"We  do  not  wish  to  be  understood  as  intimating  that  in  order  to 
constitute  the  offense,  it  must  be  shown  that  the  letters  so  mailed 
were  of  a  nature  calculated  to  be  effective  in  carrying  out  the  fraud- 
ulent scheme.  It  is  enough  if,  after  having  devised  a  scheme  to  de- 
fraud, the  defendant,  with  a  view  to  execute  it,  deposits  in  the  post- 
office  letters  which  he  thinks  may  assist  in  carrying  it  into  effect, 
although,  in  the  judgment  of  the  jury,  they  may  be  absolutely  ineffect- 
ive therefor." 

In  Lemon  vs.  United  States,  164  Federal,  953,  Circuit 
Judge  Adams,  speaking  for  the  Circuit  Court  of  Appeals 
for  the  Eighth  Circuit,  said: 

"The  contention  that  the  statements  and  letters  set  out  in  the 
several  counts  of  the  indictment  negative  the  alleged  fraudulent  scheme, 
cannot  be  sustained.  The  mailing  of  a  letter  in  the  execution  or  at- 
tempted execution  of  a  fraudulent  scheme,  is  the  gist  of  the  offense  de- 
nounced by  the  statute.  It  is  that  act,  and  it  alone,  which  confers 
jurisdiction  upon  the  Courts  of  the  United  States  to  punish  devisors 
of  fraudulent  schemes.  The  letter  which  is  mailed  is  not  required  to 
recite  the  whole  scheme  or  be  in  itself  effective  to  execute  it.  All 
that  is  imperatively  required  is  that  the  letter  mailed  should  be  one 
calculated  or  designed  to  aid  or  assist  in  the  execution  or  attempted 
execution  of  a  scheme  or  device." 

The  Circuit  Court  of  Appeals  for  the  Third  Circuit 
quotes  with  approval  in  re  Henry,  123,  U.  S.,  373,  follow- 
ed in  De  Barr,  179,  U.  S.  320,  the  following:  "The  Act 
forbids,  not  the  general  use  of  the  post-office  for  the 
purpose  of  carrying  out  a  fraudulent  scheme  or  device, 
but  the  putting  in  the  post-office  of  a  letter  or  packet,  or 
the  taking  out  of  such  a  letter  or  packet  from  the  post- 
office  in  furtherance  of  such  a  scheme.  Each  letter  so 
taken  out  or  put  in  constitutes  a  separate  and  distinct 
violation." 

Miller  vs.  United  States. — The  Circuit  Court  of  Ap- 
peals for  the  Seventh  Circuit,  in  the  case  of  Miller  vs. 
U.  S.,  174  Federal,  35,  seems  to  run  dangerously  near 
an  antagonistic  decision  to  the  Durland  case,  decided  by 
the  Supreme  Court,  cited  supra.  It  is  true  that  the  Mil- 
ler case  holds  that  the  indictment  charged  no  offense  be- 
cause it  did  not  charge  that  the  stock  sold  was  not  worth 


196  Federal.  Criminal  Law  Procedure. 

the  price  paid  for  it,  but  the  decision  in  reaching  this 
particular  point,  which  it  decides,  contains  many  expres- 
sions that  might  lead  the  practitioner  to  infer  a  danger- 
ous broadness  as  to  what  is  not  comprehended  within  the 
meaning  of  the  statute.  It  is  true  that  all  the  decisions 
are  a  unit  upon  the  proposition  that  there  must  be  an 
intention  to  injure  the  person  addressed  or  sought  to  be 
reached,  by  defrauding  him  of  something  which  he  al- 
ready has,  but  it  must  be  equally  ever  present  in  one's 
mind  that  the  statute  inhibits  the  formation  of  a  scheme 
or  artifice  to  defraud,  wherein  misrepresentations  are 
made  through  the  United  States  mail  for  the  purpose  of 
securing  something  of  value  from  the  person  to  whom 
such  representations  are  made.  In  the  Miller  case,  the 
devisor  of  the  scheme  to  defraud  was  the  President  of  a 
corporation.  The  corporation  decided  to  increase  its 
capital  stock  from  $250,000  to  $400,000.  The  corporation 
was  an  actual  manufacturer,  employing  from  one  hun- 
dred to  one  hundred  fifty  men,  the  plant  and  good  will  of 
which  was  worth  many  thousands  of  dollars.  The  de- 
fendant represented  through  the  mails,  for  the  purpose 
of  selling  this  increased  stock,  that  the  corporation  de- 
sired to  open  branch  houses  for  the  sale  of  its  goods  and 
to  employ  therein  managers  at  fixed  salaries,  besides  a 
share  of  the  profits,  and  that  the  company  was  earning  a 
profit  of  20  per  cent  and  paying  6  per  cent  dividend  to 
holders  of  its  stock  out  of  its  net  earnings;  that  as  a 
matter  of  fact  the  company  was  not  earning  20  per  cent, 
or  any  per  cent,  and  was  not  paying  any  dividends;  that 
pursuant  to  these  representations,  the  stock  was  sold  in 
blocks  of  five  thousand  dollars  each. 

I  do  not  fuss  with  the  Court  for  determining  that  the 
indictment  should  have  alleged  that  the  stock  was  not 
worth  what  the  purchasers  paid  therefor,  but  it  does  seem 
to  me  that  the  allegations  otherwise  contained  a  full  and 
complete  statement  of  such  a  case  as  comes  easily  within 
the  meaning  of  the  statute.  There  was  a  determination 
to  increase  the  stock;  the  determination  to  increase  the 
stock  was  due  to  the  fact  that  the  defendant  needed 
money.     In  order  to  realize  the  money,  representations 


Postal  Crimes.  197 

were  made  with  reference  to  the  earning  capacity  of  the 
plant,  which,  therefore,  controlled  the  value  of  the  stock, 
and  made  it  desirable  or  undesirable.  The  representa- 
tions made  with  reference  to  the  stock  and  the  plant,  its 
earning  capacity,  and  dividends,  were  untrue  and  false, 
and  made  through  the  United  States  mail.  It  is  not 
thought  that  any  safe  counselor"  would  advise  his  client 
to  engage  in  a  similar  enterprise. 

Punishment  and  Number  of  Counts.— That  paragraph 
of  the  1889  Amendment,  which  related  to  the  number  of 
offenses  committed  within  a  certain  given  time,  and 
which  was  construed  in  Hall  vs.  United  States,  152  Fed- 
eral, page  420,  and  which  has  been  the  occasion  of  some 
difference  of  opinion,  is  not  entered  into  this  statute. 
Late  decisions,  however,  upon  that  old  section,  are  the 
following:  United  States  vs.  McVickar,  164  Federal,  894: 
Lemon  vs.  United  States,  164  Federal,  953. 

A  consideration  of  the  following  cases,  for  the  purpose 
of  finding  illustrations  of  the  effectiveness  and  limita- 
tion of  the  statute,  will  be  interesting:  United  States 
vs.  Smith,  166  Federal,  958;  U.  S.  vs.  Raish,  163  Federal, 
911;  Faulkner  vs.  U.  S.,  157  Federal,  840;  U.  S.  vs.  Dex- 
ter, 154  Federal,  890;  Booth  vs.  U.  S.,  154  Federal,  836; 
Gourdain  vs.  U.  S.,  154  Federal,  453;  Dalton  vs.  U.  S., 
154  Federal,  61;  Francis  vs.  U.  S.,  152  Federal,  155;  Van 
Dusen  vs.  U.  S.,  151  Federal,  989;  U.  S.  vs.  White,  150 
Federal,  379;  Brooks  vs.  U.  S.,  146  Federal,  223;  U.  S. 
vs.  Hess,  124  U.  S.,  483;  in  re  Henry,  123  U.  S.,  372; 
Stokes  vs.  U.  S.,  157  U.  S.,  187;  Streep  vs.  U.  S.,  160  U. 
S.,  128;  Brown  vs.  U.  S.,  143  Federal,  60;  U.  S.  Ethe- 
ridge,  140  Federal,  376;  Betts  vs.  U.  S.,  132  Federal, 
228;  Packer  vs.  U.  S.,  106  Federal  906;  Tingle  vs.  U.  S., 
87  Federal,  320;  U.  S.  vs.  Smith,  45  Federal,  561. 

See  Colt  vs.  U.  S.,  190  Federal  305,  in  which  it  was 
held  that  evidence  of  other  like  offenses  in  order  to  show 
intent,  is  admissible. 

Various  indictments  charging  this  offense  may  be  con- 
solidated.   Emmanuel  vs.  U.  S.,  196  Federal  317. 

§  55a.  Other  Illustrative  Cases. — A  scheme  to  de- 
fraud by  means  of  fraudulent  bounty  claims  for  killing 


198  Federal  Criminal  Law  Procedure. 

wolves  may  be  properly  laid  under  this  statute.  Fall  vs. 
U.  S.,  209  Federal,  547.  The  Court  said,  in  reversing 
this  case  for  the  exclusion  of  testimony  upon  the  ob- 
jection of  the  Government,  that  all  evidence  is  to  be  re- 
ceived which  tends  to  refute  any  presumption  or  proof 
of  an  evil  intent.  There  must  have  been  a  scheme  or 
artifice  to  defraud,  which  necessarily  includes  the  inten- 
tion to  defraud,  and  such  intent  is  the  very  essence  of 
the  offense.  Variance  in  indictment,  see  U.  S.  vs.  Smith, 
222  Federal,  165. 

A  conviction  in  the  case  of  Fane  vs.  U.  S.,  209  Fed- 
eral, 525,  for  inducing  false  homestead  entries  upon 
government  lands  was  reversed  on  account  of  the  errone- 
ous admission  of  testimony  and  the  Court  further  held 
in  this  case  that  it  was  neither  criminal  nor  unlawful  to 
do  or  to  conspire  to  do  that  which  the  law  does  not  pro- 
hibit, but  recognizes  may  be  lawfully  done  without  prej- 
udice or  injury  to  the  United  States  or  the  State,  follow- 
ing United  States  vs.  Biggs,  211  U.  S.,  597. 

In  the  case  of  Bruce  vs.  U.  S.,  202  Federal,  98,  the 
Court  of  Appeals  reversed  the  conviction  on  the  ground 
that  the  Court  had  erred  in  refusing  to  charge  that  the 
fraud  was  not  in  the  fact  that  morphine  was  employed 
as  a  part  of  the  treatment  to  cure  the  morphine  habit. 
In  other  words,  one  having  advertised  through  the  mails 
to  cure  the  morphine  habit,  he  would  not  be  precluded 
from  the  use  of  morphine  for  that  purpose,  provided  as 
a  matter  of  fact  it  was  a  recognized  treatment  for  the 
habit.  Matters  of  opinion  are  difficult  indeed  to  prove 
as  a  fact  and  can  hardly  be  made  the  basis  of  successful 
prosecution.  Bruce  vs.  U.  S.,  202  Federal,  105;  Ameri- 
can School  vs.  McAnnulty,  187  U.  S.,  104. 

An  indictment  which  charges  doctors  with  having  pre- 
tended to  be  skilled  and  eminent  physicians  in  the  treat- 
ment of  various  diseases  and  which  is  insufficient  in  al- 
legation, must  be  attacked  by  demurrer  or  motion  to 
quash  before  verdict  and  unless  the  defendant's  charac- 
ter is  put  in  issue  proof  of  other  offenses  is  inadmissible 
and  is  reversible.    Dyar  vs.  U.  S.,  186  Federal,  620;  U. 


Postal  Crimes.  199 

S.  vs.  Smith,  222  Federal,  165;  Moses  vs.  U.  S.,  221  Fed- 
eral, 863. 

An  intent  to  defraud  is  an  absolute  essential  and 
without  such  an  allegation  an  indictment  is  fatally  de- 
fective, Blackman  vs.  U.  S.,  186  Federal,  965.  The  per- 
sons must  be  defrauded.  Wilson  vs.  U.  S.,  190  Federal, 
427;  Stockton  vs.  U.  S.,  205  Federal,  462. 

55b.    Illustrative  Cases  of  Fraudulent  Use  of  the  Mail. 

The  fraudulent  use  of  the  mail  statute  continues  to  be 
one  of  the  most  useful.  In  fact  care  must  be  taken  lest 
under  it,  jurisdiction  over  frauds  that  really  does  not 
belong  to  the  Federal  courts  be  attempted.  The  new 
statute  excludes  the  theory  that  the  scheme  must  include 
the  use  of  the  mail;  it  is  sufficient  now  if  the  mail  is  used 
whether  there  was  an  original  intention  so  to  do,  Smith 
vs.  U.  S.,  267  Feci.,  665.  In  U.  S.,  vs.  Comyns,  U.  S., 
Sup.  Ct.,  Jan.  1919,  it  was  held  that  a  land  scheme  was  a 
violation  and  the  case  also  approved  the  form  of  an  in- 
dictment. For  other  indictments,  McClendon  vs.  IT.  S., 
229  Fed.,  523;  Gardner  vs.  U.  S.,  230  Fed.,  575;  Robins 
vs.  U.  S.,  262  Fed.,  126.    Wilson  vs.  U.  S.,  275  Fed.,  307. 

A  pecuniary  loss  is  not  essential  to  constitute  a  viola- 
tion was  held  in  Wine  vs.  U.  S.,  260  Fed.,  911.  For 
sample  cases  of  the  improper  use  of  the  mail  to  sell  stock 
see  Tjosevig  vs.  Boyle,  268  Fed.,  813,  and  Rowe  vs.  Boyle, 
268  Fed.,  809.  See  also  Lyman  vs.  U.  S.,  241  Fed.,  945. 
Fraud  practiced  does  not  fall  within  the  statutes  unless 
the  scheme  was  so  in  its  inception,  U.  S.  vs.  Bachman,  246 
Fed.,  1010;  a  scheme  to  pretend  to  locate  government 
land  is  a  violation,  U.  S.  vs.  Comyns  vs.  IT.  S.,  Sup.  Ct., 
Jan.  1919.  Names  of  the  victims  and  the  time  the  scheme 
to  defraud  was  determined  upon  need  not  be  known,  Bon- 
foey  vs.  U.  S.,  252  Fed.,  802. 

For  a  fraudulent  order  against  a  seller  of  a  sexual  re- 
juvenator,  etc.,  see  Leach  vs.  Carlisle,  267  Fed.,  61;  any 
evidence  showing  that  the  article  will  do  what  it  is 
claimed  for  it  is  admissible,  Hair  vs.  U.  S.,  240  Fed.,  333; 
one  letter  is  sufficient  to  show  character,  Gernert  vs.  U. 
S.,  240  Fed.,  403. 


200  Federal  Criminal  Law  Procedure. 

A  conspiracy  among  doctors  to  declare  an  ailment  cur- 
able regardless  of  the  syptoms  is  a  violation,  Holsman  vs. 
U.  S.,  248  Fed.,  193. 

When  the  letter  is  delivered  by  hand  and  afterwards 
another  sends  it  through  the  mail,  though  the  defendant 
knew  that  such  was  the  custom,  he  committed  no  offense, 
was  decided  by  the  court  in  U.  S.  vs.  Kenofskey,  235 
Fed.,  1019,  but  such  decision  was  reversed  by  the  Sup. 
Ct.,  on  April  6,  1917,  same  case. 

The  depositing  by  another  makes  the  offense,  Rose  vs. 
U.  S.,  227  Fed.,  357. 

The  use  of  the  mails  after  the  completion  of  the  of- 
fense is  insufficient,  U.  S.  vs.  Dale,  230  Fed.,  750. 

An  acquittal  on  a  conspiracy  count  in  an  indictment 
makes  a  reversal  of  a  conviction  on  the  fraudulent  use 
count  necessary,  Hart  vs.  U.  S.,  240  Fed.,  911. 

See  the  case  of  Badders  vs.  U.  S.,  U.  S.,  Sup.  Ct.,  Fed. 
1916,  for  a  discussion  of  the  statute. 

As  to  healing  and  the  virtue  of  medicines  see,  U.  S. 
vs.  Schlatter,  235  Fed.,  381;  Samuels  vs.  U.  S.,  232  Fed., 
536. 

A  scheme  to  buy  oil  stock  includes  promises  as  to  the 
future  as  well  as  to  existing  facts,  MofYatt  vs.  U.  S.,  232 
Fed.,  522;  Menefee  vs.  U.  S.,  236  Fed.,  826. 

Threats  either  by  letter  or  otherwise  is  an  offense  un- 
der the  act  of  Feb.  14,  1917,  10200A— see  64;  with  im- 
prisonment up  to  five  years  or  a  thousand  dollar  fine  or 
both,  U.  S.  vs.  Strickrath,  242  Fed.,  151.  A  threat  to 
kill  must  be  intended  to  reach  the  party,  U.  S.  vs.  French, 
243  Fed.,  785.  Un-communicated,  offense,  when,  U.  S. 
vs.  Stobo,  251  Fed.,  689;  threats  vs.  the  President,  see 
U.  S.  vs.  Jasick,  252  Fed.,  931  and  U.  S.  vs.  Metzdorf, 
252  Fed.,  933;  and  Pierre  vs.  U.  S.,  275  Fed.,  352;  one 
cannot  pretend  that  a  threat  was  a  joke  unless  it  was 
made  known  at  the  time  that  it  was  such,  Eaganshky 
vs.  U.  S.  253  Fed.,  643;  "Which  case  also  defines  "wil- 
fully." 

An  application  for  a  position  which  mis-states  age, 
salary,  etc.,  is  not  an  offense,  Underwood  vs.  IT.  S.,  267 


Postal  Crimes.  20] 

Fed.,  412.    Pretending  to  have  spiritual  power  is  a  vio- 
lation, Crane  vs.  U.  S.,  259  Fed.,  480. 

False  credit  statements  are  violations  of  these  stat- 
utes, Kaplan  vs.  U.  S.,  229  Fed.,  389;  Bettman  vs.  U.  S., 
224  Fed.,  819;  Tucker  vs.  U.  S.,  224  Fed.,  833.  Pretend- 
ing to  do  a  large  collection  business  and  intending  to 
keep  collections  is  a  violation,  Clark  vs.  U.  S.,  245  Fed., 
112. 

Others  counts  may  refer  to  the  first  count  for  a  detail 
of  the  scheme,  Linn  vs.  U.  S.,  234  Fed.,  543. 

Trickery  and  chicanery  are  violations,  Grant  vs.  U. 
S.,  268  Fed.,  443;  as  is  pretention  of  having  a  fine  drug, 
Edwards  vs.  U.  S.,  249  Fed.,  686;  a  fraudulent  collection 
agency,  Freeman  vs.  U.  S.,  244  Fed.,  2. 

The  deposit  by  an  innocent  bank  of  a  deposited  check 
secured  by  fraud  in  the  United  States  mails  is  deposited 
by  the  defendant,  Spear  vs.  U.  S.,  228  Fed.,  485,  which 
case  holds  that  the  doctrine  of  reasonable  doubt  extends 
to  all  the  elements  of  the  offense. 

Other  illustrating  cases  are,  exchange  of  property, 
Stubbs  vs.  U.  S.,  249  Fed.,  571;  Mounday  vs.  U.  S.,  225 
Fed.,  965;  stock  sale,  Finnegan  vs.  U.  S.,  231  Fed.,  561; 
McDonald  vs.  U.  S.,  241  Fed.,  793;  selling  lands,  Cham- 
bers vs.  U.  S.,  237  Fed.,  513 ;  scheme  to  bring  black  mail- 
ing suits,  McKelvey  vs.  U.  S.,  241  Fed.,  801;  to  defraud 
depositors  of  bank  by  false  statements  of  solvency, 
Sparks  vs.  U.  S.,  241  Fed.,  777;  chain  of  banks  and  use 
of  mail  incidental,  Hendrey  vs.  U.  S.,  233  Fed.,  5;  worth- 
less treatment  by  physician,  Oesting  vs.  U.  S.,  234  Fed., 
304.  Physician  pretending  patient  ill,  Hughes  vs.  U.  S., 
231  Fed.,  50,  but  an  employee  in  such  office  is  not  guilty; 

Freman  vs.  U.  S.,  243  Fed.,  354;  protections  and  poli- 
cies, New  vs.  U.  S.,  245  Fed.,  710;  use  of  mail  by  innocent 
agent  as  bank  is  imputed  to  the  defendant,  Spear  vs. 
U.  S.,  246  Fed.,  250;  theory  of  medicine,  etc.,  under  this 
statute,  U.  S.  vs.  American  Labatories,  222  Fed.,  104. 

§  56.  The  Civil  Statute.— Section  3929  of  the  old 
statute,  amended  by  the  Fifty-first  Congress,  as  shown 
at  page  804  of  the  first  Volume  of  the  Supplement,  Act 
of  September  19,   1890,   gives  the  Postmaster   General 


202  Federal  Criminal  Law  Procedure. 

power  to  deny  the  use  of  the  United  States  mails  to 
those  conducting  fraudulent  schemes.  Interesting  cases 
growing  out  of  the  exercise  of  such  power  are  Missouri 
Drug  Company  vs.  Wyman,  129  Federal,  623,  which  re- 
cites exhaustively  and  learnedly  cases  bearing  upon  this 
question,  and  mentions  and  distinguishes  the  leading 
case  of  Magnetic  Healing  vs.  McAnulty,  137  U.  S.,  94; 
47  Law  Ed.,  90;  Donnell  Company  vs.  Wyman,  156  Fed- 
eral, 415;  Appleby  vs.  Chiss,  160  Federal,  984;  Putnam 
vs.  Morgan,  172  Federal,  450.  The  weight  of  authority 
under  this  statute  seems  to  be  that  a  Court  will  inquire 
into  the  evidence  that  was  submitted  to  the  Postmaster 
General,  and  upon  which  that  official  acted,  but  will  not 
determine  the  weight  of  the  evidence.  The  Postmaster 
General,  being  in  the  Executive  Department  of  the  Gov- 
ernment, and  empowered  with  certain  duties  that  in- 
volve judgment  and  discretion,  is  not  bound  by  the  dis- 
cretion and  judgment  of  the  Courts,  provided  he  have 
before  him  evidence  upon  which  to  base  his  act. 

More  is  not  said  with  reference  to  this  statute  and  this 
interesting  jurisdiction  of  the  Post-offrce  Department, 
for  the  reason  that  its  discussion  does  not  belong  in  this 
work,  it  relating  to  civil  remedies. 

One  seeking  to  enjoin  the  fraud  order  has  the  burden, 
etc.,  Hall  vs.  Wilcox,  225  Fed.,  333. 

See  also  U.  S.  vs.  Burleson  41  Sup.  Ct.  Rep.,  352,  for 
an  opinion  bearing  upon  the  denial  of  the  second  class 
privilege  which  is  the  same  doctrine. 

See  Sec.  65. 

§  57.  Fraudulently  Assuming  Fictitious  Address  or 
Name. — The  meat  of  Section  216  in  the  new  Code  was 
an  Amendment  to  the  old  Section  5480  of  the  Revised 
Statutes,  and  was  an  Act  of  the  Second  of  March,  1889, 
25  St.  L.,  873;  First  Supplement,  695. 

In  the  new  Code,  however,  the  assumption  of  a  ficti- 
tious, false,  or  assumed  title,  name,  or  address,  for  the 
purpose  of  conducting,  prompting,  or  carrying  on  in  any 
manner,  by  means  of  the  Post-office  establishment,  any 
scheme  or  device  mentioned  in  Section  215  of  the  new 


Postal  Crimes.  203 

Code,  or  any  other  unlawful  business,  is  made  a  separate 
section. 

The  same  punishment,  however,  is  carried  for  viola- 
tions of  this  section  as  that  provided  for  violations  of 
Section  215. 

It  is  not  sufficient,  under  this  section,  that  one  assume 
a  false  or  fictitious  name,  or  title  to  carry  on  a  business, 
unless  such  business  be  unlawful  or  denounced  by  the 
terms  of  Section  215.  In  other  words,  a  business  that 
is  lawful  in  itself,  even  though  conducted  under  an  as- 
sumed, fictitious,  or  false  name,  and  though  furthered 
through  the  post-office  establishment,  would  not  be  an 
offense  under  this  statute.  In  United  States  vs.  Smith, 
45  Federal,  561,  in  passing  upon  a  case  where  a  person 
devised  a  scheme  which  contemplated  that  he  should  as- 
sume the  role  of  a  Chinese  physician  and  pretend  to  pos- 
sess curative  power,  and  to  be  able  to  minister  to  those 
ailing  certain  Chinese  herbs,  but  who  in  fact  never  fitted 
up  such  apartments,  nor  put  into  execution  the  scheme, 
other  than  to  make  such  representations,  the  Court  held 
that  the  business  must  be  specifically  charged  and  its 
unlawful  character  disclosed,  for  it  is  not  an  offense 
within  the  statute,  to  assume  a  fictitious  name  in  a  law- 
ful business. 

In  Tingle  vs.  United  States,  87  Federal,  320.  the  Cir- 
cuit Court  of  Appeals  for  the  Fifth  Circuit  held  that  the 
indictment  was  defective,  because  it  failed  to  allege  in 
appropriate  words  that  the  alias  and  fictitious  and  false 
name  set  out  in  the  indictment,  to  wit,  Otho  Aronson.  was 
not  in  fact  the  name  of  a  real  person,  and  under  this  al- 
legation in  the  bill,  the  Court  charged  the  jury  that  they 
could  convict  the  defendant  whether  or  not  Aronson  was 
a  real  person,  and  this  charge  the  Court  held  to  be  er- 
roneous. 

In  other  words,  the  decision  would  seem  to  indicate, 
though  it  does  not  so  decide,  that  to  be  entirely  safe, 
the  prosecution  must  satisfy  itself  that  the  assumed 
name  is  not  in  reality  the  name  of  some  actual  person 
before  it  chooses  to  make  the  allegation  in  the  bill.  If 
the  assumed  name  were  in  fact  the  name  of  a  genuine 


204  Federal  Criminal  Law  Procedure. 

person,  then  it  is  thought  that  the  bill  could  not  allege, 
and  stand  the  test,  that  the  name  so  used  for  the  unlaw- 
ful business  was  in  fact  fictitious  and  false.  There 
should  be  appropriate  allegations  under  a  different  por- 
tion of  the  law,  or  rather,  as  the  law  now  stands,  the 
case  would  be  a  fraudulent  use  of  the  mail,  under  Sec- 
tion 215,  instead  of  Section  216. 

§  58.  Lottery,  Gift-Enterprise,  Etc.,  Circulars,  Etc., 
Not  Mailable. — Thomas,  in  his  interesting  volume  which 
treats  exhaustively  some  postal  offenses  which  include 
lottery  violations,  calls  our  attention  to  the  fact  that  the 
lottery  as  a  method  of  gambling  has  prevailed  from  the 
remotest  antiquity.  In  England,  Italy,  France,  Ger- 
many, Austria,  Spain,  Holland,  Denmark,  Japan,  China, 
Mexico,  and  many  of  the  South  American  Eepublics, 
lotteries  not  only  have  flourished,  but  still  live  and 
thrive.  The  life  of  the  lottery  in  the  United  States  was 
active  and  fortune  producing.  The  public  conscience, 
however,  first  pricked  in  some  of  the  old  countries,  no- 
tably England,  aroused  itself  in  the  United  States,  and 
various  state  legislatures  attempted  to  rid  this  country 
of  this  system  of  gambling.  It  was  not  until  1872,  how- 
ever, that  Congress  took  a  hand  in  the  fight,  giving  us 
Section  3894,  of  the  old  Statute,  which,  while  a  move  in 
the  right  direction,  was  rather  puny,  and  not  at  all  strong 
enough  to  combat  the  gigantic  power  and  force  of  the 
deep-rooted  evil.  Later,  September  19,  1890,  26  St.  L., 
465,  First  Volume  Supplement,  803,  came  a  substitute  for 
3894,  under  which  much  effective  prosecution  was  had. 
On  March  2,  1895,  28  St.  L.,  963,  Second  Volume  Supple- 
ment, 435,  came  an  assisting  and  auxiliary  Act,  which 
left  in  force  all  of  the  old  statutes,  and  provided  some 
new  provisions.  This  was  the  last  lottery  act  before  the 
new  code.  Under  this  legislation,  the  lottery,  and  prac- 
tically every  other  scheme  involving  a  chance  or  draw, 
has  been  driven  from  this  country.  The  law  inhibits 
the  passing  of  lottery  matter  either  through  the  mails 
or  by  any  private  carrier  from  one  state  to  another,  or 
from  another  country  to  the  United  States,  or  from  the 
United  States  to  another  country.     The  sending  of  lot- 


Postal  Crimes.  205 

tery  matter,  as  defined  in  the  statute,  which  includes  let- 
ters or  circulars  or  any  sort  of  an  advertisement  relating 
thereto,  by  any  of  the  post-office  facilities,  for  never  so 
short  a  distance,  is  a  violation;  the  sending  of  any  such 
matter  by  private  conveyance  from  one  state  to  another 
state,  or  across  the  border  from  one  .country  to  another 
country,  is  a  violation. 

The  new  law,  or  Section  215,  reads  as  follows: 

"No  letter,  package,  postal  card,  or  circular,  concerning  any  lottery, 
gift  enterprise,  or  similar  scheme  offering  prizes  dependent  in  whole 
or  in  part  upon  lot  or  chance;    and  no  lottery  ticket  or  part  thereof, 
or  paper,  certificate,  or  instrument  purporting  to  be  or  to  represent  a 
ticket,  chance,  share,  or  interest  in  or  dependent  upon  the  event  of 
a  lottery,  gift  enterprise  or  similar  scheme  offering  prizes  dependent 
in  whole  or  in  part  upon  lot  or  chance;  and  no  check,  draft,  bill,  money, 
postal  note,  or  money  order,  for  the  purchase  of  any  ticket  or  part 
thereof,  or  of  any  share  or  chance  in  any  such  lottery,  gift,  enterprise, 
or  scheme;    and  no  newspaper,  circular,  phamphlet,  or  publication   of 
any    kind    containing   any    advertisement    of    any    lottery,    gift,    enter- 
prise, or  scheme  of  any  kind  offering  prizes  dependent  in  whole  or  in 
part  upon  lot  or  chance,  or  containing  any  list  of  the  prizes  drawn  or 
awarded  by  means  of  such  lottery,  gift  enterprise,  or  scheme,  whether 
such  list  contains  any  part  or  all  of  such  prizes,  shall  be  deposited 
in  or  carried  by  the  mails  of  the  United   States,  or  be  delivered  by 
any  postmaster   or    letter   carrier.     Whoever   shall  knowingly   deposit 
or  cause  to  be  deposited,  or  shall  knowingly  send  or  cause  to  be  sent, 
anything  to  be  conveyed  or  delivered  by  mail  in  violation  of  the  pro- 
visions of  this  section,  or  shall  knowingly  deliver  or  cause  to  be  deliver- 
ed by  mail  anything  herein   forbidden   to  be   carried   by  mail,   shall 
be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not  more 
than  two  years,   or  both;     and   for  any  subsequent  offense,  shall  be 
imprisoned  not  more  than  five  years.     Any  person  violating  any  pro- 
vision of  this  section  may  be  tried  and  punished  either  in  the  dis- 
trict in  which  the  unlawful  matter  or  publication  mailed,  or  to  which 
it  was  carried  by  mail  for  delivery  according  to  the  direction  thereon, 
or  in  which  it  was  caused  to  be  delivered  by  mail  to  the  person  to 
whom  it  was  addressed." 

It  will  be  noticed  that  every  possible  term  indicating 
latitude  in  the  old  statutes  has  been  incorporated  into 
the  new  section,  and  in  addition  thereto,  it  authorizes 
the  trial  of  any  offender  in  either  the  district  wherein 
the  matter  was  deposited  in  the  mails,  or  in  the  district 
where  the  same  was  taken  from  the  mails.    The  statute, 


"206  Federal  Criminal  Law  Procedure. 

however,  continues  to  contain  the  original  weakness  of 
the  old  statutes,  to  wit,  an  indictment  which  charged 
merely  the  depositing  of  a  lottery  ticket,  etc.,  purport- 
ing to  be  or  represent  a  ticket,  chance,  share,  or  interest 
in  or  dependent  upon  the  event  of  a  lottery,  etc.,  would 
not  be  sufficient  to  sustain  a  conviction  where  the  proof 
only  showed  the  deposit  of  tickets,  etc.,  evidencing  a 
drawing  that  had  already  taken  place.  The  tickets,  to 
make  an  offense  under  that  portion  of  the  statute,  must 
be  for  a  future  drawing;  otherwise,  it  would  not  be  a 
share  or  interest  in  or  dependent  upon  the  event  of  a 
lottery,  etc.  It  is  quite  true  that  the  indictment  could 
include  other  portions  of  the  statute,  as,  for  instance, 
that  the  tickets,  even  though  representing  a  past  draw- 
ing, were  advertisements  of  the  lottery,  and,  therefore, 
contraband  and  unlawful.  In  France  et  al.  vs.  United 
States,  164  U.  S.,  674;  41  Law  Ed.,  595,  the  Supreme 
Court  of  the  United  States,  speaking  through  Mr.  Jus- 
tice Peckham,  said: 

"The  lottery  had  already  been  drawn;  the  papers  carried  by  the 
messengers  were  not,  then,  dependent  upon  the  event  of  any  lottery. 
The  language  as  used  in  the  statute  looks  to  the  future.  The  papers 
must  purport  to  be  or  represent  an  existing  chance  or  interest,  which 
is  dependent  upon  the  event  of  a  future  drawing  of  the  lottery.  A 
paper  that  contains  nothing  but  figures,  which  in  fact  relate  to  a 
drawing  that  has  already  been  completed,  and  one  that  is  past  and 
gone,  cannot  properly  be  said  to  be  a  paper  certificate  or  instrument 
as  described  in  the  statute.  It  purports  to  show  not  interest  in  or 
dependent  upon  the  event  of  any  lottery.  If  the  lottery  has  been 
drawn,  the  interest  is  no  longer  dependent  upon  it.  The  condition 
upon  which  the  bet  or  the  interest  was  dependent  has  happened;  the 
solution  of  the  problem  has  already  been  arrived  at;  the  bet  has  al- 
ready been  determined.  The  bare  statement  of  that  solution  or  deter- 
mination, placed  on  paper,  does  not  impart  to  that  paper  the  character 
of  a  certificate  or  instrument  purporting  to  be  or  represent  a  ticket 
etc.,  dependent  upon  the  event  of  a  lottery.  From  the  statement 
upon  the  paper,  the  agent  may  acquire  the  knowledge  which  will  en- 
able him  to  say  who  has  won,  but  the  book  or  the  paper  does  not 
purport  to  be,  and  is  not,  a  certificate,  etc.,  within  the  Act  of  Con- 
gress." 

It  may,  therefore,  be  contended  that  Section  213  is  no 
broader  in  the  way  of  remedying  this  defect  than  was 


Postal  Crimes.  207 

the  original  law.  The  Act  of  March  2,  1895,  still  stands 
as  the  only  Act  that  makes  it  against  the  law  to  trans- 
port by  private  carrier  from  one  state  to  another.  In 
125  Federal,  page  617,  United  States  vs.  Whelpley,  the 
Court  held  that  the  Act  of  1895  did  not  prohibit  the 
transportation  of  lottery  tickets  from  a  state  to  the 
municipality  of  the  District  of  Columbia,  and  also  that 
the  section  did  not  prohibit  the  transportation  of  lot- 
tery tickets  from  one  state  "through"  another  state  or 
states,  where  the  ultimate  destination  of  the  shipment 
was  not  within  one  of  the  United  States,  See  also  Uni- 
ted States  vs.  Ames,  95  Federal,  453,  which  held  that  the 
transportation  of  lottery  tickets  from  a  state  to  a  terri- 
tory is  not  within  the  statute.  In  this  last  case,  how- 
ever, the  point  of  great  importance  to  the  life  and  validity 
of  the  Act  of  March  2,  1895,  was,  whether  Congress  had 
the  power,  under  the  Commerce  clause  of  the  Constitu- 
tion, to  prohibit  the  transportation  of  lottery  matter 
from  one  state  to  another  state  in  the  United  States,  by 
carriers  or  persons  that  were  not  government  utilities. 
Circuit  Judge  Jenkins  held  the  law  to  apply  fully.  There- 
after, in  the  same  case,  styled  Champion  vs.  Ames,  in 
188  U.  S.,  321;  47  Law  Ed.,  492,  Mr.  Justice  Harlan, 
speaking  for  the  Court,  settled  for  all  time  the  effective- 
ness of  the  new  Act.  The  writer  had  the  honor  to  draw 
the  indictment  passed  upon  in  that  case,  and  each  of 
the  defendants  was  afterwards  convicted  at  the  Dallas 
Division  of  the  Northern  District  of  Texas.  In  that  opin- 
ion, Mr.  Justice  Harlan,  after  reviewing  extensively  the 
authorities,  the  Court  having  ordered  a  re-argument, 
said: 

"It  was  said  in  argument  that  lottery  tickets  are  not  of  any  real  or 
substantial  value  in  themselves,  and,  therefore,  are  not  subjects  of 
commerce.  If  that  were  conceded  to  be  the  only  legal  test  as  to  what 
are  to  be  deemed  subjects  of  the  commerce  that  may  be  regulated  by 
Congress,  we  cannot  accept  as  accurate  the  broad  statement  that  such 

tickets  are  of  no  value These  tickets  were  the  subject  of  traffic; 

they  could  have  been  sold;  and  the  holder  was  assured  that  the  com- 
pany would  have  paid  to  them  the  amount  of  the  prize  drawn.  That 
the  holder  might  not  have  been  able  to  enforce  his  claim  in  the  courts 
of  any  country  making  the  drawing  of  lotteries  illegal,  and  forbidding 


208  Federal  Criminal  Law  Procedure. 

the  circulation  of  lottery  tickets,  did  not  change  the  fact  that  the  tick- 
ets issued  by  the  foreign  company  represented  so  much  money  payable 
to  the  person  holding  them,  and  who  might  draw  the  prizes  affixed 
to  them.  Even  if  a  holder  did  not  draw  a  prize,  the  tickets,  before 
the  drawing,  had  a  money  value  in  the  market  among  those  who 
chose  to  sell  or  buy  lottery  tickets.     In  short,  a  lottery  ticket  is  a 

subject  of  traffic,  and  is  so  designated  in  the  Act  of  1895 We  are 

of  the  opinion  that  lottery  tickets  are  subjects  of  traffic,  and,  therefore, 
are  subjects  of  commerce,  and  the  regulation  of  the  carriage  of  such 
tickets  from  state  to  state,  at  least  by  independent  carriers,  is  a  reg- 
ulation of  commerce  among  the  several  states." 

§  59.  What  Is  a  Lottery  or  Chance? — In  Homer  vs. 
United  States,  147  U.  S.,  449,  the  Supreme  Court  of  the 
United  States  in  effect  determined  that  whatever  amount- 
ed to  a  distribution  of  prizes  by  lot  was  a  lottery,  no  mat- 
ter how  ingeniously  the  object  of  it  might  be  concealed. 
In  United  States  vs.  Wallis,  58  Federal,  942,  the  Court 
held  that  the  language  of  the  statute  is  sufficiently  com- 
prehensive to  include  any  scheme  in  the  nature  of  a  lot- 
tery, and  it  may  be  sufficient  to  say,  said  the  Court,  that 
this  embraces  the  elements  of  procuring  through  lot  or 
chance,  by  the  investment  of  a  sum  of  money  or  some- 
thing of  value,  some  greater  amount  of  money  or  thing 
of  greater  value.  When  such  are  the  chief  features  of 
any  scheme,  whatever  it  may  be  christened,  or  however 
it  may  be  guarded  or  concealed  by  cunningly  devised 
conditions  or  screens,  it  is,  under  the  law,  a  lottery.  So, 
in  Randall  vs.  State,  42  Texas,  585,  the  Court  determined 
that  Courts  will  not  inquire  into  the  name,  but  will  de- 
termine the  character  of  the  transaction  or  business  in 
which  parties  are  engaged.  Mr.  Thomas,  in  his  work, 
cited  supra,  has  collaborated  a  number  of  definitions, 
from  which  the  following  are  taken: 

"A  lottery  is  a  sort  of  gaming  contract,  by  which,  for  a  valuable 
consideration,  one  may,  by  favor  of  the  lot,  obtain  a  prize  of  a  value 
superior  to  the  amount  or  value  of  that  which  he  risks." — American 
and  English  Encyclopedia  of  Law. 

"Any  scheme  whereby  one,  in  paying  money  or  other  valuable  thing 
to  another,  becomes  entitled  to  receive  from  him  such  return  in  value, 
or  nothing,  as  some  formula  of  chance  may  determine." — Bishop  on 
Statutory  Grimes,  Section  952. 


Postal,  Crimes.  209 

"Lottery,  in  its  popular  acceptation,  is  a  distribution  of  prizes  by 
lot  or  chance;  and  when  the  chances  are  sold  and  the  distribution 
of  prizes  determined  by  lot,  this  constitutes  a  lottery." — Buck  vs. 
State,  62  Ala.,  432;     Solomon  vs.  State,  62  Ala.,  83. 

"The  generally  accepted  definition  of  a  lottery  is,  that  it  is  a  scheme 
for  the  distribution  of  prizes  for  the  obtaining  of  money  or  goods  by 
chance." — People  vs.   Noelke,   94  N.  Y.   137. 

"Any  device  whereby  money  or  any  other  thing  is  to  be  paid  or  de- 
livered on  the  happening  of  any  event  or  contingency  in  the  nature 
of  a  lottery,  is  a  lottery  ticket." — Smith  vs.  State,  68  Md.,  170;  Bay- 
land  vs.  State,  69  Md.,  170. 

"A  lottery  is  a  scheme,  device,  or  game  of  hazard,  whereby,  for  a 
smaller  sum  of  money  or  other  thing  of  value,  the  person  dealing 
therein,  by  chance  or  hazard  or  contingency,  may  or  may  not  get 
money  or  other  thing  of  value,  of  greater  or  less  value,  or  in  some 
cases  of  no  value  at  all,  from  the  owners  or  managers  of  such  lottery." 
— State  vs.  Lumsden,  89  N.  C,  572. 

"Both  by  reason  and  authority,  a  lottery  is  a  game — a  game  of 
chance."— Korten  vs.  Seney,  68  N.  W.,  824. 

"Whatever  may  be  the  name  or  character  of  the  machine  or  scheme, 
if  in  its  use  a  consideration  is  paid,  and  there  is  gambling,  the  hazard- 
ing of  small  amounts  to  win  larger,  the  result  of  winning  or  losing  to 
be  determined  by  chance,  in  which  neither  the  will  nor  skill  of  man 
co-operates  to  influence  the  result,  it  is  a  determination  by  lot." — 
Loiseau  vs.  State,  22  Southern  Rep.,  138. 

It  must  also  be  constantly  borne  in  mind  that  a  scheme 
may  come  within  the  meaning  of  the  lot  or  chance  or 
lottery  clause  of  the  above  acts,  even  though  every  in- 
vestor secures  something;  that  is  to  say,  even  though 
there  be  no  blanks.  United  States  vs.  Horner,  cited  su- 
pra. So  in  Seidenbender  vs.  Charles,  4  Serg.  and  Rawle. 
151  (8  Am.  Dec,  682),  and  Dunn  vs.  State,  40  Illinois, 
465. 

This  class  of  cases  covers  and  inhibits  the  so-called 
land  scheme,  where  each  adventurer  secures  a  lot  of  land, 
but  the  lots  are  of  unequal  value,  yet  each  being  secured 
for  the  same  price.  The  Supreme  Court  of  Pennsylvania 
said  upon  this  point: 

"If  it  be  said  that  in  this  case  there  be  no  blanks,  we  answer  that 
no  material  difference  arises  from  that  circumstance.  Some  of  the 
most  fraudulent  lotteries  ever  known  have  been  those  in  which  there 
were  no  blanks.     They  are  an  imposition  on  the  folly  of  mankind; 

14 


210  Federal  Criminal  Law  Procedure. 

for  of  what  importance  is  it  if  a  man  who  pays  a  considerable  sum 
for  a  ticket  has  a  prize  of  very  little  value." 

So  in  the  Dunn  case,  cited  supra,  the  Supreme  Court 
of  Illinois  said,  the  case  showing  that  prizes  in  that 
scheme  ranged  in  value  from  a  cheap  trinket  to  a  grand 
piano : 

"If  it  differs  from  ordinary  lotteries,  the  difference  is  chiefly  in 
the  fact  that  it  is  more  artfully  contrived  to  impose  upon  the  ignor- 
ant and  credulous,  and  is,  therefore,  more  thoroughly  dishonest  and 
injurious  to  society.'' 

§  59a.  Illustrative  Cases. — A  loan  company  which 
has  a  scheme  for  filing  applications  and  numbering  for 
the  determination  of  who  shall  be  entitled  to  a  loan,  but 
which  scheme  is  an  unfair  device  to  save  the  making  of 
loans,  is  a  violation.  U.  S.  vs.  Purvis,  195  Federal,  618. 
Prizes  in  boxes  of  tobacco  is  a  violation  of  this  lottery 
statute.  U.  S.  vs.  One  Box,  190  Federal,  731.  The  plot- 
ting of  land  and  the  increasing  of  the  value  of  some 
lots  arbitrarily  is  a  violation  of  this  lottery  statute.  U. 
S.  vs.  Kidgway,  199  Federal,  287. 

59  b.     Illustrative   Cases   Continued. 

Publishing  pictures  and  giving  a  prize  to  the  person 
or  persons  who  identify  the  same  is  not  an  offense  ac- 
cording to  Post  vs.  Murray,  230  F.  773.  A  false  repre- 
sentation as  to  the  value  and  character  of  a  piece  of 
ground  or  a  lot  is  a  violation,  Trent  vs.  U.  S.  228  F. 
648. 

§  60.  Land  Schemes. — One  of  the  most  universal 
violations  and  attempts  to  violate  the  lottery  statute 
are  the  various  and  sundry  schemes  for  the  sale  and  dis- 
tribution of  town-lot  additions.  A  tract  of  land  will  be 
secured  contiguous  to  some  city  or  town,  the  same  will 
be  plotted  into  lots,  and  upon  one  or  two  of  such  lots  a 
building  will  be  erected,  and  then  the  entire  addition 
put  on  the  market  at  a  uniform  price  per  lot,  there  be- 
ing some  sort  of  an  arrangement  whereby  the  inves- 
tors are  to  determine  which  one  shall  secure  the  im- 
portant lot.    This  identical  scheme  has  been  denounced 


Postal  Crimes.  211 

by  the  Supreme  Court  of  Pennsylvania  in  the  Seiden- 
bender  vs.  Charles  case,  cited  supra.  In  that  case  the 
evidence  showed  that  a  party  possessed  of  a  tract  of 
land  on  the  banks  of  a  river  divided  it  into  town  lots, 
which  he  sold  for  three  hundred  thirty  dollars  each,  the 
specific  lot  to  be  awarded  to  each  purchaser  by  lot.  The 
lots  were  of  unequal  value.  The  one  on  which  the  house 
was  erected  was  valued  at  eleven  thousand  dollars; 
another  having  a  barn  on  it  was  valued  at  three  thou- 
sand dollars,  and  two  of  the  others  had  wooden  buildings 
thereon.  While  the  lots  abutting  on  the  river  were  pe- 
culiarly valuable,  the  great  mass  which  laid  back  from 
the  river,  and  which  were  unimproved,  bore  no  propor- 
tion to  the  price  at  which  the  tracts  were  sold. 

This  scheme  was  denominated  a  lottery. 

Throughout  the  country  this  and  similar  decisions  are 
being  avoided  by  having  the  purchasers  determine 
among  themselves  how  the  lots  shall  be  divided,  in 
which  division  there  will  be  no  drawing;  as,  for  instance, 
a  community  of  trustees  will  be  appointed,  and  these 
trustees  will  pretend  to  auction  the  lots.  It  is  thought, 
however,  that  all  such  schemes  are  really  within  the  pale 
of  the  law,  because  the  real  incentive  moving  toward 
the  purchaser  in  all  these  cases  is  the  thought  that  he 
mav  secure  the  valuable  lot. 

60  a.     Land  Schemes  Continued. 

An  indictment  which  alleges  false  representations  con- 
cerning the  locality  of  lands  and  false  representations 
as  to  value  but  does  not  allege  that  the  lots  were  value- 
less nor  that  the  lots  were  of  less  value  than  the  selling 
price  is  insufficient  to  show  a  real  purpose  to  defraud  the 
purchaser,  U.  S.  vs.  Schwarz,  230  F.  537. 

A  scheme  involving  a  pretended  location  of  claimants 
upon  government  lands  when  they  knew  that  the  lands 
could  not  be  had  because  of  litigation  or  otherwise,  is  a 
violation,  Hallowell,  vs.  U.  S.  253  F.  865,  so  likewise  a 
false  claim  as  to  ownership  would  involve  criminality, 
McKnight  vs.  U.  S.  263  F.  832. 

§  61.  Issuing  of  Stock. — The  Post-office  Department 
and  its  force  of  inspectors,  and  particularly  the  Assist- 


212  Federal  Criminal  Law  Procedure. 

ant  Attorney  General  for  that  Department,  has  been 
most  efficient  in  rendering  service  to  the  general  public 
by  declaring  fraudulent  a  great  many  so-called  stock 
concerns,  insurance  companies,  building  and  loan  as- 
sociations, tontine  policy  corporations,  that  pretend  to 
issue  stock  or  certificates,  or  to  loan  money  at  some 
future  date  to  such  customers  as  would  pay  in  small 
installments  at  short  and  stated  periods.  But  applying 
figures  and  reasons  to  the  respective  plans  of  these 
fraudulent  concerns  these  officers  of  the  people  deter- 
mined that  it  was  impossible  for  the  concerns  to  carry  out 
the  contracts  made,  and  when  such  conclusion  has  been 
reached,  a  fraud  order  has  followed  under  the  statute 
cited  supra,  and  ofttimes  the  perpetrators  have  been 
convicted.  Such  a  scheme  was  denounced  and  a  convic- 
tion followed  in  the  case  cited  at  page  477  of  the  156 
Federal  Reporter,  Fitzsimmons  vs.  United  States.  That 
was  a  scheme  by  which  certificates  were  issued  by  a  cor- 
poration on  each  of  which  the  holder  agreed  to  pay  one 
dollar  per  week,  subject  to  forfeiture  for  non-payment, 
and  about  75  per  cent,  of  which  payments  were  paid  in- 
to a  "mutual  benefit  credit  fund"  until  all  certificates 
prior  in  date  had  matured  and  been  cancelled,  when 
his  own  certificate  should  mature,  and  he  should  be  paid 
from  such  fund  a  sum  of  two  dollars  for  each  week  such 
certificate  had  been  in  force,  provided  there  were  in  such 
fund  the  amount,  which  was  not  to  exceed  the  sum  of 
one  hundred  sixty  dollars. 

§  62.  Other  Cases. — Other  cases  bearing  directly  and 
indirectly  upon  the  statute  under  discussion,  by  reason 
of  their  having  arisen  under  some  of  the  preceding  stat- 
utes, are  the  following: 

United  States  vs.  Irvine,  56  Federal,  375. 

United  States  vs.  Rosenblum,  121  Federal,  180. 

United  States  vs.  Fulkerson,  74  Federal,  619. 

United  States  vs.  McDonald,  65  Federal,  486. 

McDonald  vs.  United  States,  63  Federal,  426. 

United  States  vs.  Conrad,  59  Federal,  458. 

United  States  vs.  Politzer,  59  Federal,  273. 

United  States  vs.  Lynch,  49  Federal,  851. 


Postal  Crimes.  213 

United  States  vs.  Bailey,  47  Federal,  117. 

United  States  vs.  Horner,  44  Federal,  677. 

Ex  parte  Jackson,  96  U.  S.,  727. 

In  re  Rapier,  143  U.  S.,  110. 

Horner  vs.  United  States,  143  U.  S.,  570,  and  147  U.  S.f 
449. 

McDonald  vs.  U.  S.,  171  U.  S.,  689;  also  87  Federal, 
324. 

U.  S.  vs.  McCrory,  175  Federal,  802,  holds  incidental 
use  of  mails  insufficient. 

62  a.     Other  Cases  Continued. 

The  fraudulent  securing  of  the  issuance  of  bills  of 
lading  when  there  was  really  no  such  shipment  is,  of 
course,  a  violation,  LeMore  vs.  U.  S.  253  F.  887. 

§  63.  Postmaster  Not  to  Be  Lottery  Agents. — Sec- 
tion 214  makes  it  an  offense  punishable  by  not  more  than 
one  hundred  dollars  fine,  or  imprisonment  for  not  more 
than  one  year,  or  both,  for  any  postmaster  or  other  person 
employed  in  the  postal  service,  to  act  as  an  agent  for  any 
lottery,  or  under  color  of  purchase  or  otherwise  to  vend 
lottery  tickets,  or  to  knowingly  send  the  same  by  mail,  or 
to  deliver  any  letter  or  package  or  postal  card  or  circular 
or  pamphlet  advertising  any  lottery,  etc.,  which  is  a 
substantial  re-enactment  of  the  old  Section  3851  of  the 
Revised  Statutes,  the  new  section  being  somewhat  broad- 
er and  covering  more  territory.  In  Louisiana  lottery 
cases,  20  Federal,  628,  the  Court  held  that  the  word 
"send"  as  used  in  the  old  section,  signifies  forwarding  in 
the  mail  through  the  officers  of  the  government. 

§  63  a.  Every  Employee  Liable  to  Penalties. — Sec- 
tion 230  provides  that  every  person  employed  in  the 
postal  service  shall  be  subject  to  all  penalties  and  for- 
feitures for  the  violation  of  laws  relating  to  such  service, 
whether  he  has  taken  the  oath  of  office  or  not,  and  Sec- 
tion 231  provides  that  the  words  "postal  service"  when- 
ever used  in  this  chapter,  meaning  chapter  on  offenses 
against  the  postal  service,  shall  be  held  and  deemed  to 
include  the  Post-office  Department. 

§  64.  False  Returns  to  Increase  Compensation.— Sec- 
tion 3855  of  the  old  statutes  provided  the  basis  for  fixing 
the  compensation  and  salary  of  postmasters  of  the  fourth 


214  Federal  Criminal  Law  Procedure. 

class.  That  statute  was  subsequently  amended  in  some 
detail  by  the  Act  shown  at  page  186  of  the  First  Volume 
of  the  Supplement,  and  later  by  the  Act  shown  at  page 
417  of  the  First  Volume  of  the  Supplement,  and  still 
later  by  the  Act  shown  at  page  419  of  the  First  Volume 
of  the  Supplement,  and  still  later  by  Section  2  of  the  Act 
shown  at  page  602  of  the  22  Statute  at  Large. 

The  pay  of  officers  of  this  class  is  graded  in  this  last  act 
upon  the  amount  of  stamps  canceled.  For  instance,  on 
the  first  fifty  dollars  or  less  per  quarter,  100  per  cent;  on 
the  next  one  hundred  dollars  or  less  per  quarter,  60  per 
cent;  on  the  next  two  hundred  dollars  or  less  per  quarter, 
50  per  cent;  and  on  all  the  balance  40  per  cent,  the  same 
to  be  ascertained  and  allowed  by  the  Auditor  of  the 
Treasury  for  the  Post-office  Department  in  the  settlement 
of  the  accounts  of  such  post-masters,  upon  their  sworn 
quarterly  returns.  To  guarantee  fidelity  in  these  returns 
and  these  reports,  Congress  enacted  Section  1  of  the  20 
St.  L.,  page  141,  which  provided  a  punishment  for  any 
false  return  made  by  a  postmaster  to  the  Auditor  for 
the  purpose  of  fraudulently  increasing  his  compensation. 
This  includes  what  has  been  technically  termed  "false 
cancellation;"  and  while  it  is  one  of  the  most  difficulty 
offenses  to  prove  in  the  postal  service,  such  proof  has  re- 
peatedly been  made  by  the  placing  of  proper  watches  and 
counts  upon  the  outgoing  mail  matter  from  the  office,  and 
by  the  estimating  of  the  sale  of  stamps,  computing  of 
box  rents,  drop  letters,  etc. 

Section  206  of  the  new  statute  increases  the  penalty 
and  is  much  more  comprehensive  than  the  old  statute, 
and  reads  as  follows: 

"Whoever,  being  a  postmaster  or  other  person  employed  in  any 
branch  of  the  postal  service,  shall  make,  or  assist  in  making,  or  cause 
to  be  made  a  false  return,  statement,  or  account  to  any  officer  of  the 
United  States,  or  shall  make,  assist  in  making,  or  cause  to  be  made, 
a  false  entry  in  any  record,  book,  or  account,  required  by  law  or  the 
rules  or  regulations  of  the  Post-office  Department  to  be  kept  in  re- 
spect of  the  business  or  operations  of  any  post-office  or  other  branch 
of  the  postal  service,  for  the  purpose  of  fraudulently  increasing  his 
compensation  or  the  compensation  of  the  postmaster  or  any  employee 
in  a  post-office;     or  whoever,  being  a  postmaster  or  other  person  em- 


Postal  Crimes.  215 

ployed  in  any  post-office  or  station  thereof,  shall  induce,  or  attempt 
to  induce,  for  the  purpose  of  increasing  the  emoluments  or  compensa- 
tion of  his  office,  any  person  to  deposit  mail  matter  in,  or  forward  in 
any  manner  for  mailing  at,  the  office  where  such  postmaster  or  other 
person  is  employed,  knowing  such  matter  to  be  properly  mailable 
at  another  post-office,  shall  be  fined  not  more  than  five  hundred  dollars, 
or  imprisoned  not  more  than  two  years,  or  both." 

Few  cases  under  this  criminal  statute  have  been  re- 
ported. United  States  vs.  Snyder,  page  554  in  the  14 
Federal,  and  the  same  case  in  the  8  Federal,  at  page  805, 
do  not  contain  any  suggestions  that  will  be  of  much  bene- 
fit to  the  practitioner.  This  case  simply  determines  that 
one  may  aid  and  abet  a  postmaster  in  committing  the 
offense,  and  that  evidence  of  other  acts  and  doings  of  a 
kindred  character  are  admissible  to  illustrate  or  establish 
the  intent  or  motive  in  the  particular  act  charged  and 
being  tried,  which  is,  of  course,  the  recognized  doctrine 
in  all  criminal  cases. 

In  United  States  vs.  Wilson,  144  U.  S.,  24,  affirmed  in 
the  26  Court  of  Claims,  186,  and  27  Court  of  Claims,  565, 
it  was  held  that  a  postmaster  was  entitled  to  his  salary 
under  a  designation  by  the  Postmaster  General,  even 
though  he  was  not  commissioned  by  the  President  until 
some  months  thereafter. 

§  65.  Civil  Remedy. — The  following  cases  relate  to 
that  portion  of  the  old  statute,  20  St.  L.,  141,  which  relates 
to  the  civil  feature  in  which  the  government  is  interested 
in  the  way  of  fixing  the  compensation,  withholding  the 
same,  and  recovering  the  same.  A  Postmaster  General 
having  allowed  the  commissions,  he  cannot  recover  the 
same  without  due  process  of  law.  United  States  vs.  Case, 
49  Federal,  270;  United  States  vs.  Hutcheson,  39  Fed- 
eral, 540;  United  States  vs.  Miller,  8  Utah,  29. 

The  Postmaster  General  may  determine,  under  the  ar- 
bitrary power  given  him,  what  is  right  and  reasonable  in 
the  matter  of  compensation,  when  the  false  return  has 
been  made.  United  States  vs.  Joedicke,  73  Federal,  100.  A 
certified  copy  of  an  order  of  the  Postmaster  General  to 
recover  money  against  a  postmaster  for  false  returns,  is 
prima  facie  evidence  of  the  fact  of  such  falseness.  United 


216  Federal  Criminal  Law  Procedure. 

States  vs.  Dumas,  149  U.  S.,  283;  Joedicke  vs.  U.  S.,  85 
Federal,  372;  U.  S.  vs.  Carlovitz,  80  Federal,  852;  U.  S. 
vs.  Case,  49  Federal,  270;  U.  S.  vs.  McCoy,  193  U.  S.,  599. 

65  a.    Acquittance  No  Bar  to  Civil  Suit. 

It  was  held  in  Sanden  vs.  Morgan,  225  F.  266,  that  an 
acquittal  upon  an  indictment  charging  a  fraudulent  use 
of  the  mail  was  not  res  adjudicata  as  to  a  civil  cause. 

§  66.  Collection  of  Unlawful  Postage. — Closely  akin 
to  the  foregoing  section,  and  for  the  protection  of  the 
public,  both  in  the  way  of  extortion  and  to  insure  uniform 
service,  is  Section  207  of  the  new  Code,  which  reads  as 
follows: 

"Whoever,  being  a  postmaster  or  other  person  authorized  to  receive 
the  postage  of  mail  matter,  shall  fraudulently  demand  or  receive  any 
rate  of  postage  or  gratuity  or  reward  other  than  is  provided  by  law 
for  the  postage  of  such  mail  matter,  shall  be  fined  not  more  than  one 
hundred  dollars,  or  imprisoned  not  more  than  six  months,  or  both." 

It  is  a  practical  re-enactment  of  the  old  Section  3899, 
with  the  exception  that  the  new  section  increases  the 
punishment  by  adding  the  imprisonment  feature.  It  is 
also  more  wholesale  in  its  terms,  since  it  uses  the  word 
"mail  matter"  while  the  old  section  used  the  words  "let- 
ters. ' ' 

§  67.  Unlawful  Pledging  or  Sale  of  Stamps. — To  fur- 
ther guarantee  uniformity  in  the  service  and  one  price  to 
all,  and  to  conserve  the  government  property  and  prevent 
its  use  by  its  officials,  and  to  restrict  the  salary  of  the 
Postmaster  or  other  person  employed  in  the  post-office 
within  the  limits  of  that  fixed  by  law.  Congress  passed 
old  Section  3920  of  the  Revised  Statutes,  and  later  an 
addition  at  page  141  of  the  20  St.  L.,  both  of  which  acts 
are  now  included  in  the  new  Section  208,  in  the  following 
words: 

"Whoever,  being  a  postmaster  or  other  person  employed  in  any  branch 
of  the  postal  service,  and  being  intrusted  with  the  sale  or  custody  of 
postage  stamps,  stamped  envelopes  or  postal  cards,  shall  use  or  dispose 
of  them  in  the  payment  of  debts,  or  in  the  purchase  of  merchandise 
or  other  salable  articles,  or  pledge  or  hypothecate  the  same,  or  sell 
or  dispose  of  them  except  for  cash;  or  sell  or  dispose  of  postage 
stamps  or  postal  cards  for  any  larger  or  less  sum  than  the  values  in- 


Postal  Crimes.  217 

dicated  on  their  faces;  or  sell  or  dispose  of  stamped  envelopes  for  a 
larger  or  less  sum  than  is  charged  therefor  by  the  Postoffice  Depart- 
ment for  like  quantities;)  or  sell  or  dispose  of,  or  cause  to  be  sold 
or  disposed  of,  postal  stamps,  stamped  envelopes,  or  postal  cards  at 
any  point  or  place  outside  of  the  delivery  of  the  office  where  such 
postmaster  or  other  person  is  employed;  or  induce  or  attempt  to 
induce,  for  the  purpose  of  increasing  the  emoluments  or  compensation 
of  such  postmaster,  or  the  emoluments  or  compensation  of  any  other 
person  employed  in  such  post-office  or  any  station  thereof,  or  the 
allowances  or  facilities  provided  therefor,  any  person  to  purchase  at 
such  post-office  or  any  station  thereof,  or  from  any  employee  of  such 
post-office,  postage  -stamps,  stamped  envelopes,  or  postal  cards;  or 
sell  or  dispose  of  postage  stamps,  stamped  envelopes,  or  postal  cards, 
otherwise  than  as  provided  by  law  or  the  regulations  of  the  Post-office 
Department,  shall  be  fined  not  more  than  five  hundred  dollars,  or 
imprisoned  not  more  than  one  year,  or  both."  ' 

Under  the  provisions  of  this  section,  the  indictment 
must  allege,  and  the  facts  must  show,  that  the  stamps 
used  by  the  postmaster  had  been  received  by  him  officially 
from  the  government,  because  the  use  of  tamps  by  a  post- 
master procured  from  another  source,  is  not  prohibited 
by  the  statute,  as  the  word  "intrusted"  is  used  with 
reference  to  the  sort  of  stamps  protected  by  the  Act. 
United  States  vs.  Williamson,  26  Fed.,  690.  The  new  sec- 
tion is  as  strong  in  its  inhibition  against  the  use  of 
stamps  by  a  postmaster  in  the  payment  of  merchandise, 
even  though  he  place  the  money  value  of  the  stamps  in 
the  till  of  the  post-office.  In  United  States  vs.  Douglas, 
33  Fed.,  381,  the  Court  in  charging  the  jury,  said: 

"The  defendant,  testifying  on  his  own  behalf,  admitted  that  he  had 
used  stamps  on  several  occasions  in  paying  for  merchandise  and  re- 
mitting money  for  the  purpose  of  making  change.  He  says  that  he 
did  this  not  dreaming  that  it  was  wrong,  and  that  in  every  instance 
he  put  the  money  value  of  the  stamps  so  used  in  the  till  of  the  post- 
office;  in  fact,  thus  purchasing  the  stamps  from  himself.  The  Act  of 
Congress  forbids  any  disposition  by  a  postmaster  of  stamps  intrusted 
to  him,  except  the  sale  of  them  at  their  face  value  for  cash  to  third 
persons.  He  cannot  use  them  in  purchase  of  goods,  or  in  payment  of 
debts  nor  can  he  purchase  them  from  himself  for  any  such  purpose. 
By  his  own  admission,  therefore,  he  has  violated  the  law,  and  if  you 
believe  him,  you  must  find  him  guilty  on  the  indictment." 

In  Palliser  vs.  United  States,  136  U.  S.,  267;  34  Law 
Ed.,  514,  the  Supreme  Court  of  the  United  States,  speak- 


218  Federal  Criminal  Law  Procedure. 

ing  through  Mr.  Justice  Gray,  held  that  the  word  "cash" 
in  the  Act  forbidding  a  postmaster  to  sell  or  dispose  of 
postage  stamps  except  for  cash,  means  ready  money  or 
money  in  hand.  A  sale  on  credit  is  not  a  sate  for  cash. 
That  case  further  determines  that  an  offer  to  a  post- 
master, promising  him  that  if  he  would  put  postage 
stamps  on  certain  circulars  and  send  them  at  the  rate  of 
fifty  to  one  hundred,  that  the  writer  would  remit  to  him 
the  price  of  the  stamps,  that  such  an  offer  was  the  tender 
of  a  contract  for  the  payment  of  money  to  induce  the 
posmaster  to  sell  stamps  on  credit,  in  violation  of  his 
lawful  duty,  and  that  an  offer  of  a  contract  to  pay  money 
to  a  postmaster  for  an  unlawful  sale  by  him  of  postage 
stamps  on  credit  is  not  the  less  within  the  statute,  (the 
Court  was  then  considering  Section  5451  of  the  old  Re- 
vised Statutes),  because  his  commission  on  the  sale 
would  be  no  greater  than  upon  a  lawful  sale  for  cash.  In 
United  States  vs.  Walter  Scott  Stamp  Company,  87  Fed- 
eral, 721,  Circuit  Judge  Lacombe,  in  passing  upon  a  civil 
action  of  replevin  brought  by  the  government  against  a 
concern  that  had  in  its  possession  a  great  number  of 
stamps,  decided  that  the  possession  of  stamps  by  persons 
outside  of  and  unconnected  with  the  Post-office  Depart- 
ment is  not  presumptively  unlawful. 

§  67a.  Receiving  Stolen  Property,  Etc. — See  Section 
74_Section  48  of  the  Act  of  March  4,  1909,  35  Stats., 
1098,  page  1603,  1911  Supp.  Compiled  Statutes,  pro- 
vides: "Whoever  shall  receive,  conceal,  or  aid  in  con- 
cealing or  shall  have  or  retain  in  his  possession  with 
intent  to  convert  to  his  own  use  or  gain  any  money,  prop- 
erty, record,  voucher,  or  valuable  thing  whatever  of  the 
moneys,  goods,  chattels,  records  or  property  of  the  Unit- 
ed States  which  has  theretofore  been  embezzled,  stolen  or 
purloined  by  any  other  person,  knowing  the  same  to  have 
been  so  embezzled,  stolen  or  purloined,  shall  be  fined  not 
more  than  five  thousand  dollars  or  imprisoned  not  more 
than  five  years,  or  both;  and  such  person  may  be  tried 
either  before  or  after  the  conviction  of  the  principal  of- 
fender. ' ' 


Postal  Crimes.  219 

The  Court  of  Appeals  for  the  Eighth  Circuit,  speaking 
through  Judge  McPherson,  in  Naftzger  vs.  U.  S.,  200 
Fed.  497,  in  reversing  a  conviction  under  this  statute, 
determined  that  inasmuch  as  an  allegation  in  the  indict- 
ment that  the  stamps  had  been  stolen  from  the  United 
States  was  necessary  to  give  a  United  States  court  juris- 
diction, there  must  be  some  substantial  proof  offered  to 
establish  this  fact,  and  that  hearsay  testimony  of  post- 
office  inspectors  would  not  meet  the  required  measure. 
The  allegation  in  that  case  on  this  particular  point  was 
that  the  stamps  had  been  stolen  from  post-offices  in  Kan- 
sas, the  exact  names  of  which  were  to  the  grand  jurors 
unknown,  and  the  Court  held  that  this  allegation  having 
been  made,  it  was  necessary  to  prove  it. 

It  was  further  held  in  this  case  that  a  conviction  upon 
extrajudicial  confession  or  acts  or  declarations  of  a  per- 
son will  not  be  sustained  without  corroborative  proof 
that  the  property  was  in  fact  stolen. 

It  is  improper  to  admit  testimony  of  post-office  inspec- 
tors that  a  number  of  post-offices  had  been  burglarized, 
for  the  purpose  of  showing  the  theft  of  postage  stamps, 
even  though  such  testimony  is  limited  by  the  Court's 
charge  to  the  issue  of  defendant's  knowledge  and  the 
case  of  Grayson  vs.  Lynch,  163  U.  S.,  468,  does  not  state  a 
rule  of  criminal  law.    Naftzger  vs.  U.  S.,  200  Federal,  500. 

§  68.  Failure  to  Account  for  Postage  and  to  Cancel 
Stamps. — Section  209  of  the  new  Code,  reading  as  fol- 
lows: 

"Whoever,  being  a  postmaster  or  other  person  engaged  in  the  postal 
service,  shall  collect  and  fail  to  account  for  the  postage  due  upon  any 
article  of  mail  matter  which  he  may  deliver,  without  having  previously 
affixed  and  canceled  the  special  stamp  provided  by  law,  or  shall  fail 
to  affix  such  stamp,  shall  be  fined  not  more  than  fifty  dollars." 

relates  evidently  only  to  what  is  commonly  known  as 
special  or  due  postage.  It  was  originally  a  part  of  the 
Act  of  March  3,  1879,  as  shown  at  page  249  of  the  First 
Volume  of  the  Supplement,  and  was  Section  27  of  that 

Act. 

§  69.    Issuing  Money  Order  Without  Payment.— Sec- 
tion 210  of  the  new  Code  reads  as  follows: 


220  Fkderal.  Criminal  Law  Procedure. 

"Whoever,  being  a  postmaster  or  other  person  employed  in  any 
branch  of  the  postal  service,  shall  issue  a  money  order  without  having 
previously  received  the  money  therefor,  shall  be  fined  not  more  than 
five  hundred  dollars." 

The  only  difference  between  it  and  4030  of  the  Revised 
Statutes,  which  was  directed  at  the  same  offense,  is  that 
the  new  Code  contains  no  minimum  fine,  and  does  not 
denounce  the  offense  as  a  misdemeanor.  In  view  of  the 
lightness  of  the  punishment  and  the  dire  consequences  of 
issuing  money  orders  without  having  received  the  money 
therefor,  it  is  believed  that  Section  210  was  intended 
merely  for  the  punishment  of  postal  employees  who 
through  negligence,  and  not  by  reason  of  any  fraudulent 
design,  issue  a  money  order  without  previously  having 
received  the  money  therefor.  Practically  the  entire  mon- 
ey-order funds  of  the  government  are  at  the  disposal 
of  each  employee  who  has  authority  to  issue  money- 
orders,  and  a  punishment  so  light  as  that  affixed  under 
this  section  would  be  entirely  disproportionate  to  the 
grievousness  of  the  offense,  and  all  fraudulent  issues, 
therefore,  of  money  orders,  by  postal  employees,  should 
or  may  be  prosecuted  under  Section  218  of  the  new  Code, 
as  they  were  under  5463  of  the  old  statutes  and  amend- 
ments thereto. 

§  69a.  Conviction  Under  One  Statute  No  Bar,  When. 
— A  conviction  under  Section  210  would  not  be  a  bar  to 
a  conviction  under  Section  218  which  follows,  for  the 
reason  that  where  an  offense  is  in  violation  of  two  differ- 
ent statutes,  and  a  different  proof  is  required  to  convict 
under  one,  different  elements  or  grounds  being  involved 
in  each,  a  conviction  or  acquittal  under  one  statute  is 
not  a  bar  to  a  prosecution  under  the  other.  U.  S.  vs. 
Komie,  194,  Federal  567;  Carter  vs.  McClaughry,  183  U. 
S.,  365;  Barton  vs.  IT.  S.,  202  U.  S.,  344;  Gavieres  vs.  U. 
S.,  220  U.  S.,  338. 

§  70.  Counterfeiting  Money  Orders,  Etc.,  and  Fraudu- 
lently Issuing  the  Same  Withou't  Having  Received  the 
Money  Therefor. — Section  218  of  the  new  Code  embraces 
all  the  features  of  5463  of  the  old  statute,  the  Act  of  the 
third  of  January,  1887,  First  Supplement,  518,  and  the 


Postal  Crimes.  221 

Act  of  the  eighteenth  of  June,  1888,  First  Supplement, 
593,  and  reads  as  follows: 

"Whoever,  with  intent  to  defraud,  shall  falsely  make,  forge,  counter- 
feit, engrave,  or  print,  or  cause  or  procure  to  be  falsely  made,  forged, 
counterfeited,  engraved  or  printed,  or  shall  willingly  aid  or  assist  in 
falsely  making,  forging,  counterfeiting,  engraving  or  printing,  any 
order  in  imitation  of  or  purporting  to  be  a  money  order  issued  by 
the  Post-office  Department,  or  by  any  postmaster  or  agent  thereof;  or 
whoever  shall  forge  or  counterfeit  the  signature  of  any  postmaster, 
assistant  postmaster,  chief  clerk,  or  clerk,  upon  or  to  any  money 
order,  or  postal  note,  or  blank  therefor  provided  or  issued  by  or  under 
the  direction  of  the  Post-office  Department  of  the  United  States,  or  of 
any  foreign  country,  and  payable  in  the  United  States,  or  any  material 
signature  or  endorsement  thereon,  or  any  material  signature  to  any 
receipt  or  certificate  of  identification  thereon;  or  shall  falsely  alter 
or  cause  or  procure  to  be  falsely  altered  in  any  material  respect,  or 
knowingly  aid  or  assist  in  falsely  so  altering  any  such  money  order 
or  postal  note;  or  shall,  with  intent  to  defraud,  pass,  utter,  or  publish 
any  such  forged  or  altered  money  order  or  postal  note,  knowing  any 
material  signature  or  endorsement  thereon  to  be  false,  forged,  or 
counterfeited,  or  any  material  alteration  therein  to  have  been  falsely 
made;)  or  shall  issue  any  money  order  or  postal  note  without  having 
previously  received  or  paid  the  full  amount  of  money  payable  therefor, 
with  the  purpose  of  fraudulently  obtaining  or  receiving,  or  fraudulently 
enabling  any  other  person,  either  directly  or  indirectly  to  obtain  or 
receive  from  the  United  States  or  any  officer  employed,  or  agent  there- 
of, any  sum  of  money  whatever;  or  shall  with  intent  to  defraud  the 
United  States  or  any  person,  transmit  or  present  to,  or  cause  or  pro- 
cure to  be  transmitted  or  presented  to,  any  officer  or  employee  or  at 
any  office  of  the' government  of  the  United  States,  any  money  order  or 
postal  note,  knowing  the  same  to  contain  any  forged  or  counterfeited 
signature  to  the  same,  or  to  any  material  endorsement,  receipt,  or 
certificate  thereon,  or  material  alteration  therein  unlawfully  made,  or 
to  have  been,  unlawfully  issued  without  previous  payment  of  the 
amount  required  to  be  paid  upon  such  issue,  shall  be  fined  not  more 
than  five  thousand  dollars,  or  imprisoned  not  more  than  five  years, 
or  both." 

An  indictment  under  the  forging  or  counterfeiting  fea- 
ture of  this  section  must  contain  no  incompatibility  of 
purport  and  tenor  clauses,  and  it  is  decidedly  the  safer 
plan  for  the  bill  to  set  out  in  haec  verba  the  instrument, 
and  the  pleader  must  take  careful  notice  that  the  instru- 
ment so  set  out  does  not  differ  in  any  respect  from  that 
portion  of  the  bill  giving  the  purport  of  the  forged  in- 
strument. 


222  Federal  Criminal  Law  Procedure. 

The  old  Common  Law  rule  that  a  fictitious  name  could 
not  be  subject  to  forgery,  for  the  reason  that  there  would 
be  no  one  to  be  defrauded,  has  a  marked  exception  under 
this  statute.  In  ex  parte  Hibbs,  26  Federal,  421,  which 
was  a  case  that  arose  by  reason  of  a  postmaster  issuing  a 
money  order  on  the  application  of  a  fictitious  person  pay- 
able to  a  certain  bank,  to  which  he  at  the  same  time  wrote 
in  the  name  of  such  person,  directing  that  the  amount  of 
the  order  be  collected  and  remitted  to  him  in  a  registered 
package,  which  he  intercepted  as  it  passed  through  his  of- 
fice, converting  the  contents  to  his  own  use,  the  Court 
held  that  the  Act  of  the  postmaster  constituted  forgery, 
both  at  Common  Law  and  under  the  statute,  to  wit,  5463. 

In  United  States  vs.  Eoyer,  122  Federal,  844,  the  gov- 
ernment elected  to  prosecute  a  clerk  in  a  post-office  au- 
thorized to  issue  money  orders,  who  had  issued  money 
orders  in  payment  of  his  private  debts,  under  Section 
4046  of  the  Revised  Statutes,  for  an  embezzlement  of 
money  order  funds.  Clearly,  he  was  also  guilty  of  a 
violation  of  Section  5463,  after  having  issued  the  orders 
without  first  having  received  the  money  therefor,  but  the 
decision  of  the  Court  in  that  case  shows  to  what  extent 
an  employee  empowered  to  issue  money  orders  may  dep- 
redate upon  the  Government  funds.  In  Vives  vs.  United 
States,  92  Federal,  355,  Judge  Pardee,  speaking  for  the 
Circuit  Court  of  Appeals  for  the  Fifth  Circuit,  with  ref- 
erence to  the  defendant's  use  of  money  order  funds  by 
drawing  money  orders  without  previously  receiving  the 
money  therefor,  and  which  was  a  prosecution  for  em- 
bezzlement under  4046,  said  that  the  intention  of  the 
employee  to  return  the  money  to  the  Government  when 
a  settlement  of  his  account  would  have  been  due  was  no 
defense  under  the  law.  In  United  States  vs.  Long,  30 
Federal,  678,  Judge  Speer,  in  charging  the  jury,  said  that 
forgery,  being  the  fraudulent  making  or  alteration  of  a 
writing  to  the  prejudice  of  another  man's  right,  and  that 
one  may  be  guilty  of  such  forgery  if  he  fraudulently  signs 
his  own  name,  although  it  is  identical  with  the  name  of 
the  person  who  should  have  signed.  He  further  holds  in 
the  same  case  that  the  signature  to  a  receipt  on  a  money 
order  is  a  material  signature  in  the  meaning  of  the  law. 


Postal  Crimes.  223 

It  may  be  here  remarked  that  that  portion  of  the  stat- 
ute which  relates  to  the  forgery  of  a  material  endorse- 
ment or  signaure  to  a  money  order  or  any  receipt  thereon, 
is  the  portion  of  the  law  most  frequently  violated. 

It  must  be  continually  borne  in  mind  that  the  indict- 
ment must  charge,  and  the  proof  must  show  that  the  forg- 
ery or  other  acts  committed  under  this  section  were 
so  committed  with  the  intention  to  defraud.  In 
United  States  vs.  Morris,  16  Blatchf.  (United  States), 
133,  26  Federal  Cases  No.  15813,  the  Court  held  that  even 
though  an  indictment  charged  the  defendant  with  having 
forged  a  material  endorsement  upon  a  post-office  money- 
order  with  the  intent  to  defraud  a  certain  private  person, 
the  same  was  sufficient,  because  it  was  still  an  act  which 
the  United  States  had  the  authority  to  punish,  for  the 
better  protection  of  money  orders  lawfully  issued  by  the 
United  States. 

Judge  Thayer,  in  United  States  vs.  Crecilius,  34  Fed- 
eral, page  32,  said  that  the  word  "alter,"  as  used  in  this 
statute,  described  an  act  or  acts  not  distinctly  covered  or 
embraced  by  any  preceding  word. 

Under  the  statute  as  it  is  now  drawn,  there  is  prac- 
tically no  act,  alteration,  erasure,  or  change  that  can  be 
made  to  a  money  order  with  fraudulent  intent  that  is  not 
by  some  of  the  terms  of  the  statute  fitted  with  the  mean- 
ing of  the  same. 

See  Sections  69  and  69a.  Also  U.  S.  vs.  Komie,  194 
Federal,  567. 

§  71.  Counterfeiting  Postage  Stamps,  Domestic  or 
Foreign. — Sections  5464  and  5465  of  the  old  statutes  pro- 
tected from  forging  and  counterfeiting  the  stamps  and 
envelopes  and  other  output  of  the  Post-Office  Department 
which  were  for  the  purpose  of  paying  postage,  whether 
of  this  or  a  foreign  country.  These  two  statutes  with 
some  change  in  punishment,  have  become  Sections  219 
and  220  of  the  new  Code,  and  they  read  as  follows : 

"Sec.  219.  Whoever  shall  forge  or  counterfeit  any  postage  stamp  or 
any  stamp  printed  upon  any  stamped  envelope  or  postal  card,  or  any 
die,  plate,  or  engraving  therefor;  or  shall  make  or  print,  or  know- 
ingly use  or  sell,  or  have  in  possession  with  intent  to  use  or  sell,  any 
such  forged  or  counterfeited  postage  stamp,  stamped  envelope,  postal 


224  Federal  Criminal  Law  Procedure. 

card,  die,  plate,  or  engraving;  or  shall  make  or  knowingly  use  or 
sell,  or  have  in  possession  with  intent  to  use  or  sell,  any  paper  bearing 
the  water-mark  of  any  stamped  envelope,  or  postal  card,  or  any  fraud- 
ulent imitation  thereof;  or  shall  make,  or  print,  or  authorize  or  pro- 
cure to  be  made  or  printed,  any  postage  stamp,  stamped  envelope,  or 
postal  card  of  the  kind  authorized  and  provided  by  the  Post-office 
Department,  without  the  special  authority  and  direction  of  said  De- 
partment; or  shall,  after  such  postage  stamp,  stamped  envelope, 
or  postal  card  has  been  printed,  with  intent  to  defraud,  deliver  the 
same  to  any  person  not  authorized  by  an  instrument  in  writing  duly 
executed  under  the  hand  of  the  Postmaster  General  and  the  seal  of  the 
Post-office  Department,  to  receive  it,  shall  be  fined  not  more  than  five 
hundred  dollars,  or  imprisoned  not  more  than  five  years,  or  both.'' 

"Sec.  220.  "Whoever  shall  forge,  counterfeit,  or  knowingly  utter  or 
use  any  forged  or  counterfeited  postage  stamp  of  any  foreign  govern- 
ment, shall  be  fined  not  more  than  five  hundred  dollars,  or  imprisoned 
not  more  than  five  years,  or  both." 


It  will  be  observed  that  each  of  the  sections  fails  to  in- 
clude any  word  with  reference  to  intent,  and  in  the  ab- 
sence of  any  such  word,  and  under  the  authority  of  United 
States  vs.  Coppersmith,  4  Federal,  198,  and  United  States 
vs.  Field,  16  Federal,  779,  it  would  seem  that  an  indict- 
ment does  not  have  to  charge  fraudulent  intent  in  alleg- 
ing the  ingredients  of  a  counterfeiting  or  forging  charge. 
It  is  quite  apparent  that  the  observations  in  the  two  cases 
just,  cited  that  these  offenses  are  not  felonies,  by  reason  of 
the  repeal  of  the  old  statute,  when  the  Act  of  June  8, 
1872,  became  effective,  is  forceless  under  the  new  sec- 
tions, because  the  new  Code  itself  denominates  all  offenses 
felonies  where  the  punishment  may  be  confinement  for  a 
vear. 

Notwithstanding  the  severity  of  the  punishment  and 
the  meaning  usually  given  to  the  words  "counterfeit"  or 
"forge"  in  criminal  statutes,  which  invariably  implies 
venality  and  corruption,  the  language  of  these  sections 
would  seem  to  indicate  that  it  was  the  intention  of  Con- 
gress to  so  denounce  in  definition,  and  by  severe  punish- 
ment, and  to  prevent,  if  possible,  even  experimenting  in 
the  reproduction  of  facsimiles  of  postage  stamps,  envel- 
opes, cards,  etc.,  like  those  made  by  the  Government,  be- 
cause it  may  be  argued  that  no  one  would  trouble  himself 
to  facsimile  such  a  small  article,  unless  he  intended  to 


Postal  Ceimes.  225 

work  injury.  On  the  other  hand,  this  may  be  one  of  those 
statutes  in  which  Congress  has  neglected  to  include  all 
of  the  elements  of  the  offense,  and  it  thereupon  devolves 
upon  the  pleader  to  draw  his  bill  sufficiently  broad  to 
define  the  offense,  even  though  the  statute  does  not  do  so. 
§  72.  Misappropriation  of  Postal  Funds  or  Property 
by  Use  or  Failure  to  Deposit.— Section  225  of  the  new 
Code,  reads  as  follows: 

Whoever,  being  a  postmaster  or  other  person  employed  in  or  con- 
nected with  any  branch  of  the  postal  service,  shall  loan,  use,  pledge, 
hypothecate,  or  convert  to  his  own  use,  or  shall  deposit  in  any  bank 
or  exchange  for  other  funds  or  property,  except  as  authorized  by  law, 
any  money  or  property  coming  into  his  hands  or  under  his  control, 
in  any  manner  whatever,  in  the  execution  or  under  color  of  his  office, 
employment,  or  service,  whether  the  same  shall  be  the  money  or 
property  of  the  United  States  or  not;  or  shall  fail  or  refuse  to  remit 
to  or  deposit  in  the  Treasury  of  the  United  States,  or  in  a  designated 
depository,  or  to  account  for  or  turn  over  to  the  proper  officer  or 
agent,  any  such  money  or  property,  when  required  so  to  do  by  law  or 
the  regulations  of  the  Post-office  Department,  or  upon  demand  or  order 
of  the  Postmaster  General,  either  directly  or  through  a  duly  author- 
ized officer  or  agent,  shall  be  deemed  guilty  of  embezzlement  and 
every  such  person,  as  well  as  every  other  person  advising  or  know- 
ingly participating  therein,  shall  be  fined  in  a  sum  equal  to  the  amount 
or  value  of  the  money  or  property  embezzled,  or  imprisoned  not  more 
than  ten  years,  or  both.  Any  failure  to  produce  or  to  pay  over  any 
such  money  or  property,  when  required  so  to  do  as  above  provided, 
shall  be  taken  to  be  prima  facie  evidence  of  such  embezzlement  and 
upon  the  trial  of  any  indictment  against  any  person  for  such  embez- 
zlement, it  shall  be  prima  facie  evidence  of  a  balance  against  him  to 
produce  a  transcript  from  the  account  books  of  the  Auditor  for  the 
Post-office  Department.  But  nothing  herein  shall  be  construed  to 
prohibit  any  postmaster  depositing,  under  the  direction  of  the  Post- 
master General,  in  a  national  bank  designated  by  the  Secretary  of 
the  Treasury  for  that  purpose,  to  his  own  credit  as  postmaster  any 
funds  in  his  charge,  nor  prevent  his  negotiating  drafts  or  other  evi- 
dences of  debt  through  such  bank,  or  through  United  States  disbursing 
officers  or  otherwise,  when  instructed  or  required  so  to  do  by  the 
Postmaster  General  for  the  purpose  of  remitting  surplus  funds  from 
one  postoffice  to  another." 

It  supplants  and  takes  the  place  of  4046  and  4053,  Ee- 
vised  Statutes  of  1878.  The  prosecution  frequently  com- 
prised in  one  indictment  against  the  same  defendant  vio- 
lations of  the  two  old  statutes,  laying  a  count  under  4046 

15 


226  Federal  Criminal  Law  Procedure. 

and  then  a  count  under  4053.  These  statutes  are  for  the 
purpose  of  affording  another  guaranty  that  the  govern- 
ment shall  take  no  chances  whatever  in  the  result  of  the 
judgment  of  its  employees.  A  postmaster  or  a  postal 
employee  may  be  honest,  and  intend  to  only  temporarily 
use  the  funds  that  belong  to  the  Government  which  are 
in  his  custody  or  possession,  but  such  honest  intent  with 
reference  to  the  subsequent  replacing  is  no  protection 
against  prosecution  under  this  statute.  Any  use  or  ap- 
propriation or  the  failure  to  deposit,  as  required  by  the 
regulations,  constitutes  embezzlement  within  meaning  of 
this  section.  The  Act  not  only  protects  money,  but  it 
likewise  protects  any  property  that  may  belong  to  the 
Postal  Department. 

The  law  of  embezzlement  is  statutory.  It  originated 
in  a  bungling  attempt  to  amend  the  Common  Law  of  lar- 
ceny, and  is  indeed  a  sort  of  statutory  larceny.  The 
methods  of  use  or  appropriation,  therefore,  denounced  in 
the  statute,  are  sufficient  to  describe  this  particular  stat- 
utory embezzlement.  In  United  States  vs.  Gilbert,  25 
Federal  Cases  No.  15205,  the  Court  used  the  following 
language: 

"It  is  evident  that  an  embezzlement  such  as  is  contemplated  by  this 
section  may  be  proved  in  either  one  of  two  ways:  first,  by  showing 
that  in  point  of  fact  the  postmaster  has  converted  to  his  own  use 
money  order  funds;)  second,  by  his  failure  to  pay  over  such  funds 
when  required  either  by  the  law  or  regulations,  or  when  demand  is 
made  by  an  officer  authorized  for  that  purpose — Although  it  is  true 
that  the  funds  were  subsequently  paid  into  the  post-office,  and  although 
it  may  also  be,  and  probably  was,  true  that  these  funds,  when  thus 
converted,  were  intended  and  expected  to  be  replaced,  so  that  the 
Government  should  sustain  no  loss,  which  goes  very  far  toward 
mitigating  the  offense,  yet  it  is  obvious  that  the  enforcement  of  this 
section  in  all  its  strictness  is  essential  to  this  class  of  government 
funds,  and  to  the  discouragement  of  postmasters  from  even  temporarily 
using  them  for  private  purposes.  The  intention  of  replacing  them, 
however  honestly  entertained,  cannot  be  accepted  as  an  excuse  or 
apology  for  violating  the  law,  as  one  may  be  disappointed  by  un- 
expected circumstances,  and  thus  not  only  endanger  the  moneys  of 
the  Government,  but  involve  himself  in  difficulty  and  criminal  pros- 
ecution. The  law  intends  that  funds  of  this  character  should  be  kept 
absolutely  separate  and  sacred,  as  the  best  method,  not  only  of  keeping 
the  funds  themselves  secure,  but  of  guarding  the  officers  themselves 


0 


Postal  Ceimes.  227 

from  temptation  and  delinquency.  A  diversion  of  money  order  funds 
in  any  way  whatever  prohibited  by  this  section,  or  for  any  time,  how- 
ever short,  constitutes  embezzlement  under  this  Act." 

See  also  United  States  vs.  Royer,  122  Federal,  844, 
which  applied  the  doctrine  of  refusing  to  permit  the  post- 
al employee  to  use  Government  money  order  funds  in 
the  payment  of  private  debts  by  issuing  money  orders 
upon  blanks  in  the  employee's  possession;  also  Vives  vs. 
United  States,  92  Federal,  355.  The  indictment,  under 
this  section,  must  allege  that  the  funds  were  intrusted 
to  the  employee,  so  as  to  show  the  fiduciary  capacity.  U. 
S.  vs.  Royer,  122  Federal,  844.  It  will  be  noticed  that  the 
Act  provides  that  a  transcript  from  the  account  books  of 
the  Auditor  for  the  Post-office  Department,  showing  a 
balance  against  the  officer,  shall  be  prima  facie  evidence 
of  such  embezzlement.  This  provision,  while  seemingly 
harsh,  is  salutary;  for  otherwise,  the  officer  could  con- 
tend that  as  a  matter  of  fact  there  was  no  balance  against 
him,  during  which  period  of  ascertainment  he  could  be 
enjoying  the  use  of  the  funds.  In  United  States  vs.  Swan, 
7  N.  M.,  311,  that  portion  of  the  statute  was  held  to  be 
constitutional,  and  the  Court  there  held  that  this  pro- 
vision was  not  in  conflict  with  that  section  of  the  Consti- 
tution which  provides  that  in  all  criminal  prosecutions 
the  accused  shall  enjoy  the  right  to  be  confronted  with 
the  witnesses  against  him.  See  also  Faust  vs.  United 
States,  163  U.  S.,  454;  41  Law  Ed.,  224. 

In  an  indictment  against  a  public  officer  for  embezzle- 
ment of  public  funds  alleged  to  have  been  in  his  posses- 
sion as  such  officer,  the  rule  applied  that  it  is  sufficient  to 
charge  that  he  embezzled  same,  without  more,  see  U.  S. 
vs.  Mason,  179  Federal,  page  552,  which  case  also  holds 
bill  sufficient  which  specifies  amount  of  money  and  states 
grand  jury  is  unable  to  give  further  information  of  de- 
scription. 

In  United  States  vs.  Young,  25  Federal,  710,  the  Court 
passes  upon  a  state  of  facts,  and  concludes  that  they  in- 
dicate that  the  prisoner  was  an  adroit  criminal  rather 
than  an  insane  man,  and,  therefore,  fixed  responsibility 
upon  him  for  the  temporary  use  of  Government  money, 


228  Federal  Criminal  Law  Procedure. 

under  this  statute.  It  must  also  be  borne  in  mind  that  in 
indictments  under  this  section,  against  employees  of  the 
postal  service  other  than  postmasters,  it  is  not  necessary 
to  allege  nor  to  prove  the  want  of  consent  of  a  postmaster 
to  the  embezzlement  of  money  order  funds.  Faust  vs. 
United  States,  163  U.  S.,  454;  41  Law  Ed.,  224.  It  must 
also  be  remembered  that  indictments  under  this  section, 
under  the  authority  of  Moore  vs.  United  States,  160  IT. 
S.,  269;  40  Law  Ed.,  424,  must  allege  that  the  funds  came 
into  the  possession  of  the  defendant  in  his  official  charac- 
ter and  by  virtue  of  such  employment,  and  specifically  set 
out  the  sort  of  employment  he  was  engaged  in  for  the 
Govrnment. 

72  a.  Indictment  for  Misappropriation  of  Postal 
Funds,  etc. 

Foster  vs.  U.  S.,  256  F.  207;  Ossendorf  vs.  U.  S.,  272 
F.  257. 

On  a  trial  for  a  conversion  it  is  improper  to  admit  evi- 
dence of  failure  to  deposit,  and  a  proper  certificate  must 
be  had  from  the  postoffice  department.  Youmans  vs.  U. 
S.,  264  F.  425. 

§  73.  Rural  Carriers  Responsible  Under  This  Section. 
— In  United  States  vs.  Mann,  160  Federal,  552,  District 
Judge  Speer  held  that  the  post-office  regulations  author- 
izing rural  letter  carriers  to  take  and  receipt  for  money 
from  patrons  of  their  routes,  to  purchase  and  forward 
money  orders  to  the  persons  for  whom  they  are.  designed, 
did  not  make  the  money  so  received  and  receipted  for  by 
rural  carrier  from  patrons  of  his  route,  to  be  used  in  the 
purchasing  and  forwarding  of  money  orders,  while  in  the 
possession  of  such  carrier,  and  before  surrender  at  the 
post-office,  "money  order  funds,"  for  the  embezzlement  of 
which  the  carrier  could  be  prosecuted  under  Section  4046. 
This  was  the  construction  placed  upon  the  statute  with 
reference  to  embezzlements  by  rural  route  carriers  by 
many  of  the  trial  courts,  though  there  was  some  differ- 
ence of  opinion.  It  became  and  was,  however,  very  nec- 
essary that  such  funds  should  be  protected,  and  the  pro- 
vision in  the  new  section  which  protects  the  money  "or 
property  coming  into  his  hands,  or  under  his  control  in 
any  manner  whatever,  in  the  execution  or  under  color  of 


Postal  Crimes.  229 

his  employment  or  service,  whether  the  same  shall  be  the 
money  or  property  of  the  United  States  or  not,"  clearly 
protects  all  such  funds,  and  gives  to  the  statute  a  color 
and  meaning  badly  needed. 

The  reasoning  with  reference  to  allegations  in  the  in- 
dictment in  Dimmick  vs.  United  States,  121  Federal,  638, 
though  upon  Section  5492  rather  than  the  one  under  dis- 
cussion, may  be  interesting,  because  under  that  statute, 
similarly  worded,  the  Circuit  Court  of  Appeals  for  the 
Ninth  Circuit  held  that  the  jury  must  find,  in  order  to 
convict  the  defendant,  that  the  failure  to  deposit  was  in- 
tentional and  wilful,  and  that  these  words  intentional  and 
wilful  must  be  read  into  the  statute. 

§  74.  Stealing  Post-office  Property. — Section  190  of 
the  new  Code  enlarges  the  punishment,  and  simplifies  old 
Section  5475,  and  reads  as  follows: 

"Whoever  shall  steal,  purloin,  or  embezzle  any  mail  bag  or  other 
property  in  use  by  or  belonging  to  the  Post-office  Department,  or  shall 
appropriate  any  such  property  to  his  own  or  any  other  than  its  proper 
use,  or  shall  convey  away  any  such  property  to  the  hindrance  or 
detriment  of  the  public  service,  shall  be  fined  not  more  than  two 
hundred  dollars,  or  imprisoned  not  more  than  three  years,  or  both." 

The  indictment  under  this  section  simply  contains  the 
ordinary  elements  for  the  charging  of  statutory  theft,  or 
Common  Law  larceny.  That  portion  of  the  statute  which 
relates  to  the  use  of  any  property  demands  in  the  bill  of 
indictment  to  properly  plead  the  offense  the  use  of  the 
word  showing  intent  and  wilfulness.  An  innocent  use  or 
mistaken  use  under  this  section  it  is  not  thought  would 
be  an  offense.  In  United  States  vs.  Yennie,  74  Federal, 
221,  the  Court  held  that  a  count  might  be  laid  under  this 
Section  and  a  count  under  5478  in  the  same  indictment, 
without  being  duplicitous.    See  67a. 

§  75.  Other  Offenses. — The  new  Code,  in  addition  to 
the  offenses  heretofore  mentioned,  creates  and  re-enacts 
sections  relating  to  the  following: 

Conducting  Post-office  without  authority:  Section  179, 
old  Eevised  Statutes  3829. 

Illegal  carrying  of  mail  by  carriers  and  others:  Section 
180,  old  Section  3981. 


230  Federal,  Criminal  Law  Procedure. 

Conveyance  of  mail  by  private  express  forbidden:  Sec- 
tion 181,  old  Section  3982. 

Transporting  persons  unlawfully  conveying  mail:  Sec- 
tion 182,  old  Section  3983. 

Sending  letters  by  private  express:  Section  183,  old 
Section  3984. 

Conveying  of  letters  over  post  roads:  Section  184,  old 
Section  3985. 

Carrying  letters  out  of  the  mail,  on  board  a  vessel:  Sec- 
tion 185,  old  Section  3986. 

When  conveying  letters  by  private  person  is  lawful: 
Section  186,  old  Section  3987.' 

Wearing  Uniform  of  carrier  without  authority:  Sec- 
tion 187,  old  Section  3867. 

Vehicles,  etc.,  claiming  to  be  mail  carriers:  Section  188, 
old  Section  3979. 

Deserting  the  mail:   Section  199,  old  Section  5474: 

Delivery  of  letters  by  master  of  vessel:  Section  200,  old 
Section  3977. 

Vessels  to  deliver  letters  at  post-office;  oath:  Section 
204,  old  Section  3988. 

Letters  carried  in  a  foreign  vessel  to  be  deposited  in  a 
post-office:   Section  203;  old  Section  4016. 

Using,  selling,  etc.,  canceled  stamps,  and  removing  can- 
cellation marks  from  stamps,  etc.:  Section  305;  old  Sec- 
tion 3922,  3923,  3924,  and  3925. 

Poisons  and  explosives  non-mailable:  Section  217,  Old 
Section  3878;  First  Supplement,  247,  and  Second  Supple- 
ment, 507. 

Enclosing  higher  class  in  lower  class  matter:  Section 
221,  old  Section  3887  and  First  Supplement,  578. 

Postmaster  illegally  approving  bond,  etc.:  Section  222, 
old  Section  3947  and  First  Supplement,  45. 

False  evidence  as  to  second-class  matter:  Section  223, 
old  Section,  First  Volume  Supplement,  593  and  33  St.  L., 
823. 

Inducing  or  prosecuting  false  claims:    Section  224. 

Employees  not  to  become  interested  in  contracts:  Sec- 
tion 226;    old  Section  412. 

Fraudulent  use  of  official  envelopes:  Section  227;  old 
Acts,  First  Supplement,  135  and  First  Supplement,  467. 


Postal  Crimes.  231 

Fraudulent  increase  of  weight  of  mail:  Section  228,  old 
Act,  Second  Supplement,  778  and  30  St.  L.,  442. 

Offenses  against  foreign  mail  in  transit:  Section  229; 
old  statute  4013. 

§  75a.  Mail— Carrying  Illegally.— Section  3985  of  the 
1878  Revised  Statutes  and  Section  184  of  the  new  code 
prohibit  the  conveying  of  letters  over  and  along  post 
roads.  These  inhibitions,  however,  do  not  prevent  the 
carrying  of  letters  over  a  post  road  when  such  letters  re- 
late to  the  business  of  the  carrier  only.  U.  S.  vs.  Erie 
Ry.  Co.,  235  U.  S.  513,  November  Term,  1914.  See  also 
Section  75  and  the  statutes  therein  cited  bearing  upon  the 
post-office  business.  The  government  controls  exclusive- 
ly such  business  and  by  various  statutes  protects  such 
monopoly. 

75  b.     Poison,  etc., 

Poison  and  explosives  are  non-mailable,  see  section  217 
of  the  1910  Code  and  section  3878  of  the  old  revised  stat- 
utes. 

In  Murray  vs.  U.  S.  247  F.  874,  it  was  held  that  an 
indictment  which  shows  the  condition  of  the  statute  is 
sufficient  to  charge  this  offense. 

75  b.  b.     Advertising  or  soliciting  for  Liquor  Sales. 

By  the  Act  of  Mar.  3,  1917,  Sec.  9915,  Barnes  Fed.  Code, 
1919,  it  was  provided  that  no  letter,  postal  card,  circular, 
newspaper,  pamphlet  or  publication  of  any  kind  contain- 
ing any  advertisement  of  spirituous,  vinous,  malted,  fer- 
mented, or  other  intoxicating  liquors  of  any  kind,  or 
containing  a  solicitation  of  an  order,  or  orders  for  said 
liquors,  or  any  of  them,  shall  be  deposited  in  or  carried 
by  the  mails  of  the  United  States  or  delivered,  etc.,  and 
provides  for  a  thousand  dollar  fine  or  six  months  im- 
prisonment, or  both. 


CHAPTER  IV  A. 

PRACTICE  HELPS. 

§  75. c.     Admiralty  Rules. 
75.cc.     Court  Cannot  Instruct  Verdict  of  Guilty. 
75.C.C.C.     Alibi. 
75. d.     Alien    Property    Act. 

75.d.d.     U.   S.   May  Appeal  Criminal   Case,   When. 
75.d.d.d.     Arrest  of  Judgment. 
75. e.     Army  and  Navy. 
75.e.e.     Adulterated    Butter. 
75.e.e.e.     Bawdy   House. 
75.f.     Child  Labor  Law. 
75.f.f.     Clayton  Act. 
75.f.f.f.     Common   Law   Offenses. 
75.g.     Corpus  Dilicti. 
75.g.g.     Counsel-Advice. 
75.g.g.g.     Costs  in   Criminal  Case. 
75. h.     Cross  Examination. 
75.h.h.     Decoys-Entrapment. 
75.h.h.h.     Demand  on  Deft,  for  Evidence. 
75. i.     Demurrer  to  Evidence. 
75.j.     Date-In  Indictment. 
75.j.j.     Duress. 
75.j.j.j.     Eight  Hour  Law. 

75.j.j.j.j.     Federal  Employees  Injured  and  Compensated. 
75. k.     Entrapment-Inducement. 
75.k.k.     Expert  Testimony. 
75.k.k.k.     Exceptions — Indictment. 

75.k.k.k.k.     Indictment-Information-Exceptions    Continued. 
75.1.     Free  Speech. 
75.1.1.     Habeas  Corpus. 
75.1.1.1.     Hepburn  Act. 
75.m.     Income  Tax.  . 
75.m.m.     Argument-Improper. 
75.m.m.m.     Injunction. 
75.n.     Criminal  Intent. 
75.n.n.     Interest  on  Criminal  Judgment. 
75.n.n.n.     Indians. 

75. o.     False  Claims  for  Damages  to  Shipment. 
75.0.0.     Insanity-From  Drugs  or  Liquor-Defense. 
75.0.0.0.     Court-Meaning. 
75.p.     Viruses-Serums,  etc. 
75. p.p.     Public  Lands. 
75. p.p. p.     Lever  Act. 
75. q.     Letter  Carriers. 

232 


Practice  Helps.  933 

§  75.q.q.     U.  S.  Marshal-Deputies,  etc. 
75.q.q.q.     Memory  Refreshing. 
75.r.     Mandamus-To  Compel  U.  S.  Court,  etc., 
75.r.r.     Motion  to  Quash. 

75.r.r.r.     Newspaper-Affidavit   as   to  Circulation. 
75.s.     Passports. 
75.s.s.     Fraud   Order. 
75.s.s.s.     Warrant  Issued  by  President. 
75.t.     Prisoners. 
75.t.t.     Subpoena-Duces  Tecum. 

75.t.t.t.     Regulations  by  Commissoner  of  Internal  Revenue 
75.u.     Revenue  Law-What  Is? 
75.u.u.     Repeal  of  Act,  Right  to  Prosecute. 
75.u.u.u.     Sale-What   Is? 
75.v.     Seamen. 
75.v.v.     Immunity  Promises. 
75.v.v.v.     Strikers. 
75.w.     Trading  with   the   Enemy. 
75.w.w.     Suits  vs.  U.   S. 

75.w.w.w.     Government  Control  of  Transportation. 
75.x.     "Unknown"-In   Indictment. 
75.x.x.     Venue. 

75.x.x.x.     State  Courts-Jurisdiction. 
75.y.     Wife-Cannot  be  Witness  for  Husband. 
75. z.     Trial  of  Deft.  While  he  is  Serving  Term  of  Imprisonment. 

Sec.  75c.    Admiralty  Rules. 

Imprisonment  for  debt  is  likewise  abolished  in  the  ad- 
miralty court.    Admiralty  Rules,  267  F. 

Sec.  75cc     Court  Cannot  Instruct  a  Verdict  of  Guilty. 

Even  upon  an  agreed  statement  of  facts  the  court  is 
not  permitted  to  instruct  the  jury  to  bring  in  a  verdict 
of  guily  in  a  criminal  case,  Blair  vs.  U.  S.  241  F.  217. 

Sec.  75c. c.c.    Alibi. 

In  a  prosecution  for  conspiracy  the  immediate  presence 
of  the  defendant  after  the  formation  of  the  conspiracy  is 
not  necessarv  to  render  him  guilty,  Ding  vs.  U.  S.  246  F. 
80. 

Sec.  75d.     Alien  Property  Act. 

The  trading  with  the  Enemy  Act  Oct.  6,  1917,  passed 
by  Congress  after  the  declaration  of  war  with  Germany, 
was  a  valid  exercise  of  the  war  power,  Fischer  vs.  Pal- 
mer, 259  F.  355. 

Sec.  75d.d.    Appeal. 


234  Federal  Criminal  Law  Procedure. 

The  United  States  may  appeal  in  a  criminal  case,  when 
U.  S.  vs.  Oppenheimer  vs.  U.  S.  Sup.  Ct.  Dec.  1916;  U.  S. 
vs.  Comyns,  U.  S.  Snp.  Ct.  Jan.  1919. 

Sec.  75d.d.d.     Arrest  of  Judgment. 

See.  Andrews  vs.  U.  S.  224  F.  418. 

Sec.  75e.     Army  and  Navy. 

A  person  in  custody  for  violation  of  the  state  law  can- 
not be  released  to  enter  the  United  States  army  although 
subject  thereto  after  his  punishment  is  finished,  ex  parte 
Callowav,  246  F.  263. 

A  minor  will  be  released,  when  Rush  246  F.  172. 

A  minor  may  be  released  by  a  civil  court  before  court- 
martial  charges  begin,  ex  parte  Avery,  235  F.  248. 

For  army  laws  see  239  F.  275. 

Under  the  Act  of  1916,  the  army  age  is  eighteen  years 
and  a  sixteen  year  old  boy  may  be  re-taken  by  the  par- 
ents if  no  military  offense  has  been  committed,  since 
enlistment  is  not  an  offense  under  the  above  cases. 

For  a  full  discussion  of  the  jurisdiction  of  the  civil  and 
military  courts  see  U.  S.  vs.  Brown,  242  F.  983. 

One  over  eighteen  cannot  be  released,  Reed  vs.  Cush- 
man,  251  F.  872. 

A  person  "attached  to"  the  army  is  amenable  to  its 
regulations,  exparte  Gerlach,  247  F.  616. 

The  action  of  the  exemption  board  in  classifying  is  fi- 
nal, why  and  when  248  F.  141. 

The  forgery  of  a  discharge  from  the  army  is  a  violation 
of  the  Act  of  Mar.  4,  1917.  For  a  full  discussion  of  the 
1917  draft  act  see  the  following  cases;  ex  parte  Cohen, 
245  F.  667;  Angelus  vs.  Sullivan,  246  F.  54;  Arver  vs. 
U.  S„  245  U.  S.,  366;  U.  S.  vs.  Casey,  247  F.  362;  U.  S. 
vs.  Koop,  245  F.  871;  U.  S.  vs.  Baker,  247  F.  124;  Pap- 
pens  vs.  U.  S.,  252  F.  55;  Sugar  vs.  U.  S.,  252  F.  79. 

The  selective  act  is  constitutional,  U.  S.  vs.  Olson,  253 
F.  232. 

A  "deserter"  is  one  who  is  absent  without  leave  and 
with  a  manifest  intention  not  to  return,  while  a  "strag- 
gler" is  one  who  is  absent  without  leave,  with  the  prob- 
ability that  he  does  not  intend  to  desert  but,  if  his  absence 
continues  for  ten  davs,  he  becomes  a  deserter,  Reed  vs. 
U.  S.,  252  F.  21. 


Practice  Helps.  235 

Sec.  75e.e.    Butter  Adulterated. 

For  a  discussion  of  the  act  of  May,  1902,  with  reference 
to  adulterated  butter  see,  Henningsen  vs.  Whaler,  238  F. 
650. 

Sec.  75e.e.e.    Bawdy  House. 

For  decisions  under  the  war  act  relating  to  the  main- 
tenance and  establishment  of  disorderly  houses  see  Holmes 
vs.  U.  S.,  269  F.  489;  Nakano  vs.  U.  S.,  262  F.  761;  Pap- 
pens  vs.  U.  S.,  252  F.  55;  U.  S.  vs.  Hicks,  256  F.  707; 
Grancourt  vs.  U.  S.,  258  F.  25;  Thaler  vs.  U.  S.,  261  F. 
746.  See  also  U.  S.  vs  Casey,  247  F.  362;  Brown  vs.  U. 
S.  260  F.  752;  Anzine  vs.  U.  S.,  260  F.  827;  Goublin  vs. 
U.  S.  261  F.  5;  Pollard  vs.  U.  S.,  261  F.  336;  McKnight 
vs.  U.  S.,  249  U.  S.,  614. 

Sec.  75f.     Child  Labor  Law. 

The  Act  of  Sep.  1,  1916,  C.  432,  39  Stat.  675,  was  de- 
clared unconstitutional  by  the  Supreme  Court  of  the 
United  States  of  June  3,  1918,  in  the  case  of  Hammer  vs. 
Dagenhart. 

Sec.  75ff.     Clayton  Act. 

See  monopoly;   trust  statute;   Sherman  law. 

For  a  decision  drawing  distinction  between  agencies 
and  sale  see  Curtis  Publishing  Company  vs.  Fed.  270  F. 
881;  strikes,  boycott  and  injunction  in  re  Duplex  252  F. 
722;  patents,  etc.,  U.  S.  vs.  United  Shoe  264  F.  138. 

A  contract  for  exclusive  sale  is  a  violation,  Standard 
vs.  Magrane  254  F.  493;  the  agricultural  exceptions  of 
the  act  are  construed  in  U.  S.  vs.  King,  250  F.  908.  A 
contract  between  the  publisher  and  district  agent  for 
exclusive  handling  of  publications  is  not  a  violation,  Pic- 
torial vs.  Curtis  Publishing  Company,  255  F.  206. 

For  indictment  under  this  act  see  Boyle  vs.  U.  S.  259  F. 
803;  Belfi  vs.  U.  S.  259  F.  822. 

Manufacturers  binding  agents  as  to  re-sale  is  a  viola- 
tion, U.  S.  vs.  Schrader,  U.  S.  Sup.  Ct,  Rep,  Mar.  1920,  40 
Sup.  Ct.  Rep.  251. 

A  contract  requiring  a  patent  licensee  to  buy  material 
to  make  the  machinery  of  the  seller  is  not  a  violation, 
Westinghouse  vs.  Diamond,  268  F.  121. 


2«?6  Federal  Criminal  Law  Procedure. 

Labor  unions  have  no  right  under  the  Clayton  or  Sher- 
man Acts  to  boycott  and  restrain  inter-state  trade,  Du- 
plex vs.  Deering,  U.  S.  Sup.  Ct.  Jan.  1921,  41  Sup.  Ct. 
Eep.  172. 

Sec.  75f.f.f.     Common  Law  Offenses. 

There  are  no  common  law  offenses  known  to  the  Fed- 
eral jurisdiction.  There  are  only  such  Federal  offenses 
as  have  been  created  by  Federal  negation  statutes,  Ham- 
burg vs.  U.  S.  250  F.  747;  Couture  vs.  U.  S.  256  F.  525. 

Before  a  man  can  be  punished  his  case  must  be  plainly 
and  unmistakably  within  the  statute  said  the  Supreme 
Court  in  U.  S.  vs.  Lacker,  134  U.  S.  624.  An  offense 
which  may  be  the  subject  of  criminal  procedure  is  an  act 
committed  or  omitted  in  violation  of  a  public  law  either 
forbidding  or  commanding  it,  U.  S.  vs.  Eaton,  144  U.  S. 
677.  There  are  no  common  law  oifenses  against  the  Unit- 
ed States,  U.  S.  vs.  Britton,  108  U.  S.  199;  U.  S.  vs.  Hud- 
son, 7  Cranch,  32;  Tenn.  vs.  Davis,  100  U.  S.  257;  Benson 
vs.  McMakon,  127  U.  S.  457. 

Sec.  75g.     Corpus  Delicti. 

Judge  Wade  speaking  for  tke  Circuit  Court  of  Appeals 
for  tke  8th  Circuit  in  Goff  vs.  U.  S.,  257  F.  294,  held  that, 
"we  do  not  hold  that  declarations  of  a  party  may  not  be 
considered  in  finding  the  corpus  delicti;  but,  standing 
alone,  they  are  insufficient,  and  other  facts  and  circum- 
stances cannot  be  said  to  be  corroborative  when  they 
point  as  directly  to  some  other  offense  as  they  do  to  the 
crime  charged,"  see  also  Naftzger  vs.  U.  S.  200  F.  494; 
Chamberlayne,  evidence,  Sec.  1600. 

Sec.  75g.g.     Counsel — Advice. 

In  order  that  a  defendant  may  justify  himself  by  show- 
ing that  he  acted  on  the  advice  of  his  attorney  it  must 
appear  that  all  of  the  acts  which  go  to  make  up  the 
charged  criminal  offense  must  have  been  before  the  at- 
torney when  he  gave  the  advice,  Hardy  vs.  U.  S.,  256  F. 
284. 

It  is  a  well  settled  rule  that  every  one  is  presumed 
to  know  the  law  and  that  one's  ignorance  of  it  furnishes 
no  exemption  for  his  act.  In  Hoover  vs.  State.  59  Ala. 
57;  Weston  vs.  Com,  111  P.  A.  251;  State  vs.  Foster,  22 
B.  I.  163;  U.  S.  vs.  Anthony,  24  Fed.  case,  14459,  it  was 


Practice  Helps.  237 

held  to  be  no  defense  that  the  defendant  had  been  advised 
by  counsel  that  the  law  whose  violation  was  alleged  was 
unconstitutional  and  it  has  been  repeatedly  held  that  on 
a  prosecution  for  bigamy  or  adultery  that  it  is  no  de- 
fense that  the  accused  believed,  on  the  advice  of  counsel, 
that  he  had  a  right  to  marry,  State  vs.  Goodenow  65  Me. 
30;  People  vs.  Weed,  29  Hun,  628;  Medrano  vs.  State,  32 
Tex.  Crim.  214. 

Further  exceptions  to  this  same  rule  are,  a,  where  a 
specific  intention  is  essential,  as  where  a  person  charged 
with  theft  actually  believed  the  property  he  took  to  be 
his  own,  Com  vs.  Stebbins,  8  Gray,  Mass,  492;  People 
vs.  Husband,  36  Mich.  306.  But  ignorance  of  the  law  may 
be  considered  a  mitigation  of  punishment,  see  also  fur- 
ther discussion  of  the  question  in  12  Cyc.  156-160. 
Sec.  75g.g.g.  Costs  in  Criminal  Cases. 
Sec.  1014  provides  that  the  cost  of  the  preliminary 
examination  shall  be  at  the  expense  of  the  United  States. 
The  costs  of  the  trial  proper  may  be  adjudged  against  the 
defendant,  as  provided  by  Sec.  974,  U.  S.  vs.  Briebach, 
245  F.  204. 

Sec.  75h.     Cross  Examination. 

The  prosecution  is  bound  by  the  answer  of  the  defend- 
ant as  to  a  wholly  collateral  charge  against  him  and  may 
not  resort  to  the  judgment  roll  to  contradict  him.  Bill- 
iard vs.  U.  S.,  245  F.  837. 

Cross  examination  may  extend  to  the  subject  matter 
inquired  about  on  direct  examination,  232  F.  444. 

A  defendant's  failure  to  answer  may  be  commented  on, 
Lemore  vs.  U.  S.,  253  F.  887. 

In  a  criminal  prosecution  for,  using  the  mails  to  de- 
fraud, it  was  prejudicial  error  to  permit  counsel  for  the 
government,  on  cross  examination  of  defendant,  to  in- 
quire as  to  the  property  he  owned  at  the  time  of  the  al- 
leged offense,  and  at  the  time  of  trial,  Culver  vs.  U.  S., 
257  F.  63. 

Sec.  75h.h.    Decoys— see  Entrapment. 
The  employment  of  decoy  letters  by  a  government  in- 
spector is  not  an  objection  to  a  conviction  for  mailing 
obscene  matter,  Price  vs.  U.  S.,  165  U.  S.  311.    See  postal 
violations. 


238  Federal  Criminal  Law  Procedure. 

Where  the  deception,  in  the  way  of  decoys  or  detec- 
tives is  of  such  character  as  to  make  it  unconscionable 
for  the  government  to  press  its  case  it  should  prevent 
prosecution,  Goldstein  vs.  U.  S.  813. 

A  defendant  cannot  be  convicted  of  a  crime  which  was 
provoked  or  induced  by  a  government  officer  or  agent, 
and  which  otherwise  would  not  have  been  committed,  U. 
S.  vs.  Lynch,  256  F.  983. 

Sec.  75h.h.h.     Demand  on  Defendant  for  Evidence. 

It  is  inexcusable  misconduct  for  a  prosecuting  attorney 
to  make  a  demand  on  the  defendant  or  his  attorney  in 
the  presence  of  the  jury  for  the  production  of  evidence 
in  the  defendant's  possession,  Green  vs.  U.  S.  266  F.  779; 
Mc  Knight  vs.  U.  S.,  122  F.  926;  Heinze  vs.  U.  S.,  181  F. 
322;-  Trent  vs.  U.  S.,  228  F.  648;  Watlington  vs.  U.  S., 
233  F.  247.  The  trial  court  might  remedy  the  wrong, 
Chadwick  vs.  U.  S.,  141  F.  225;  Dunlop  vs.  U.  S.,  165 
U.  S.,  486.  But  the  court  must  act  promptly  both  by 
chiding  the  prosecuting  officer  and  by  proper  instruction 
to  the  jury. 

In  the  case  of  Bryant  vs.  U.  S.,  257  F.  383,  the  Court 
of  Appeals  for  the  5th  Circuit  held  that  where  the  prose- 
cution traced,  by  the  testimony,  before  the  jury,  the 
documentary  evidence  into  the  hands  of  the  defendant, 
and  then  introduced  secondary  evidence,  that  such  action 
was  not  error,  the  District  Judge  having  instructed  the 
jury  to  disregard  such  evidence.  This  ruling  is  danger- 
ous in  the  judgment  of  the  writer  and  is  in  violation  of  the 
spirit  of  the  constitution.  No  action  should  be  permitted 
which  requires  any  sort  of  an  explanation  by  the  defend- 
ant, nor,  which  calls  the  attention  of  the  jury  to  the  fact 
that  the  defendant  is  not  making  an  explanation.  The 
right  of  the  defendant  to  stand  as  an  innocent  man  until 
he  has  been  proven  guilty  is  too  sacred  in  this  country  to 
permit  it  to  be  undermined  or  whittled  away. 

Sec.  75i.     Demurrer  to  Evidence. 

The  proper  practice  with  reference  to  the  entry  of  a 
demurrer  to  the  testimony  of  the  prosecution  is  outlined 
in  the  following  cases,  Dernberger  vs.  B.  &  0.,  243  F.  21; 
Lohman  vs.  Co.,  243  F.  517;  Rich  vs.  U.  S.,  271  F.  566. 

Sec.  75j.    Date — In  Indictment. 


Practice  Helps.  239 

Correct  pleading  requires  a  definite  allegation  as  to 
the  date  of  the  offense,  but  the  prosecution  is  not  bound 
to  prove  the  date  as  alleged,  U.  S.  vs.  Gaag,  237  F.  730; 
Ledbetter  vs.  U.  S.,  170  U.  S.  606;  Firth  v.  U.  S.,  253  F. 
37. 

Sec.  75j.j.     Duress. 

In  the  case  of  Ford  vs.  U.  S.,  259  F.  553,  the  Circuit 
Court  of  Appeals  for  the  8th  Circuit  speaking  through 
Circuit  Judge  Stone  very  properly  held  that  where  tes 
tirnony  vital  to  conviction  is  given  under  duress  no  con- 
viction based  thereon  will  be  permitted  to  stand. 

The  courts  cannot  be  too  emphatic  against  the  admis- 
sion of  such  confessions  of  such  testimony  as  may  disclose 
that  it  was  the  result  of  official  oppression.  As  the  coun- 
try grows  more  populous  and  officers  are  less  close  to 
the  community  we  must  be  careful  indeed  that  there  are  > 
no  official  inquisitions  for  the  alleged  purpose  of  the  en- 
forcement of  the  law.  A  peace  officer  has  no  right  to 
intimidate,  nor,  to  harm,  nor,  to  punish,  nor,  to  bear  down 
in  any  way  upon  a  citizen  for  the  pretended  purpose  of 
securing  testimony.  The  outrage,  for  such  it  is,  is  more 
serious  than  at  first  impression  one  would  think. 

Sec.  75j.j.j.     Eight  Hour  Law. 

The  Act  of  May  4, 1916,  C.  109,  39  Stat.  61,  provides  cer- 
tain penalties  for  violations  of  what  is  called  the  Adam- 
son  or  Eight  Hour  Law  on  interstate  railways. 

''Any  common  carrier  or  any  officer  or  agent  thereof, 
requiring  or  permitting  any  employee  to  go,  be  or  remain 
on  duty  in  violation  of  the  second  section  hereof  shall 
be  liable  to  a  penalty  of  not  less  than  one  hundred  dollars 
nor  more  than  five  hundred  dollars  for  each  and  every 
violation,  to  be  recovered  in  a  suit  or  suits  to  be  brought 
by  the  United  States  District  Attorney  having  jurisdic- 
tion in  the  localitv  where  such  violation  shall  have  been 
committed. ' ' 

The  act  also  provides  "any  person  violating  any  pro- 
vision of  this  act  shall  be  guilty  of  a  misdemeanor  and 
upon  conviction  shall  be  fined  not  less  than  one  hundred 
dollars  and  not  more  than  one  thousand  dollars  or  im- 
prisonment not  to  exceed  one  year,  or  both." 


240  Federal  Criminal  Law  Procedure. 

The  act  also  makes  provision  for  appointment  of  a  com- 
mission and  provision  for  no  reduction  in  wages  pending 
a  report  and  otherwise  regulates  the  conduct  of  the  labor 
for  such  common  carriers,  Act.  Sep.  3,  1916  C.  436,  Sec.  1 ; 
Sees.  8089-8096,  Barnes  1919. 

By  the  Acts  of  Aug.  1,  1892,  C.  352,  27  Stat.  340  and 
Mar.  3,  1913,  C.  106,  37  Stat.  726,  an  eight  hour  day  for 
laborers  and  mechanics  on  government  work  is  legislated. 

Any  government  officer  or  agent  is  deemed  guilty  of 
a  misdemeanor  who  violates  its  provisions  and  shall  be 
punished  upon  conviction  by  fine  not  to  exceed  one  thou- 
sand dollars  or  by  imprisonment  for  not  more  than  six 
months  or  by  both  fine  and  imprisonment,  Barnes  1919 
Fed.  Code,  pages  1945-1947. 

75.jj.j.j.    Federal  Employees  Injured  and  Compensat- 
ed. 

The  Act  of  Sep.  7,  1916,  provides  compensation  for  dis- 
ability or  death  of  an  employee  resulting  from  a  personal 
injury  sustained  while  in  the  performance  of  his  duty  as 
an  employee  of  the  United  States,  but  no  compensation 
shall  be  paid  if  the  injury  or  death  is  caused  by  the  wil- 
full  misconduct  of  the  employee  or  by  the  employee's 
intention  to  bring  about  the  injury  or  death  of  himself  or 
of  another  or  if  intoxication  is  the  proximate  cause. 

The  act  provides  for  an  affidavit  with  reference  to  the 
amount  of  wages  and  contains  many  other  provisions  and 
then  contains  this  section,  "whoever  makes,  in  any  affi- 
davit required  under  section  4,  or  in  any  claim  for  com- 
pensation, any  statement,  knowing  it  to  be  false,  shall  be 
guilty  of  perjury  and  shall  be  punished  by  a  fine  of  not 
more  than  two  thousand  dollars,  or  by  imprisonment  for 
not  more  than  one  year,  or  by  both  such  fine  and  im- 
prisonment," Sec.  39,  Act.  Sep.  7,  1916,  C.  458,  39  Stat. 
749;  page  1953,  1919  Barnes'  Fed.  Code. 

Sec.  75k.     Entrapment — Inducement. 

The  appointing  of  professional  detectives  and  agents 
and  deputies  and  decoys  in  the  securing  of  testimony 
and  conviction  of  persons  who  transgress  the  law  has 
very  naturally,  resulted  in  abuses  by  persons  and  the 
courts  have  been  compelled  to  refuse  to  permit  convic- 
tions to  stand  where  the  methods  employed  seemed  to  be 


Practice  Helps.  241 

an  entrapment  of  the  citizen  or  the  inducing  of  a  citizen 
to  do  the  thing  that  the  government  was  prosecuting  him 
for  having  done.  The  fact  that  a  detective  or  other  per- 
son suspected  that  the  defendant  was  about  to  commit  a 
crime  and  prepared  for  his  detection,  as  a  result  of  which 
he  was  entrapped  in  its  commission,  is  no  excuse,  if  the 
defendant  alone  conceived  the  original  criminal  design. 
If,  however,  the  prosecutor  in  setting  his  trap  waives  his 
legal  rights,  as  where  he  consented  to  the  act,  and  the  of- 
fense required  want  of  consent  on  his  part,  the  prosecu- 
tion will  fail,  12  Cyc.  160,  where  many  cases  are  cited 
form  many  states.     See  Decoys. 

See  also  Billingsley  vs.  U.  S.,  274  F.  86,  which  gives  the 
rule;  U.  S.  vs.  Eman,  271  F.  353;  Butts  vs.  U.  S.,  273  F. 
35;  Peterson  vs.  U.  S.,  255  F.  433;  Partan  vs.  U.  S.,  261 
F.  515;  Farley  vs.  U.  S.,  269  F.  721;  Rothman  vs.  U.  S., 
270  F.  31. 

Sec.  75k.k.     Expert  Testimony. 

The  admissibility  of  expert  testimony,  as  dependent  on 
the  qualifications  of  the  expert,  is  to  be  determined  by 
the  trial  judge,  and  its  probative  value  is  to  be  appraised 
by  the  jury,  U.  S.  vs.  Fischer,  245  F.  477. 

Sec.  75k.k.k.     Exceptions — Indictment. 

It  is  always  the  safest  practice  to  negative  the  excep- 
tions of  a  statute,  even  though,  there  might  be  a  given 
state  of  facts  which  would  render  it  unnecessary,  Young 
vs.  U.  S.,  249  F.  937;  Krause  vs.  U.  S.  267  F.  183;  Roth- 
man vs.  U.  S.,  270  F.  31. 

Sec.  75k.k.k.k.    Indictment  and  Information. 

An  indictment  need  not  negative  the  exceptions  in  the 
statute.  Especially  is  this  true  in  view  of  section  32  of 
the  Act  which  provides  that  it  shall  not  be  necessary  in 
any  indictment  to  include  any  defensive  negative  aver- 
ments.   Davis  vs.  U.  S.,  274  F.  928. 

Sec.  751.     Free  Speech. 

For  discussion  of  the  constitutional  right,  see  Schaefer 
vs.  U.  S.,  40  Sup.  Ct  Rep.  259;  Mar.  1,  1920;  Seebach  vs. 
U.  S.  262  F.  885. 

Sec.  751.1.    Habeas  Corpus, 

Issuance  of  by  Federal  court  for  an  United  States  of- 
ficer to  the  state  court,  see  in  re  Beach,  259  F.  957. 

16 


242  Federal  Criminal  Law  Procedure. 

Sec.  751.1.1    Hepburn  Act. 

For  an  illustratve  conspiracy  to  violate  the  Hepburn 
Act  see  Dye  vs.  U.  S.,  262  F.  6. 

Sec.  75m.     Income  Tax. 

A  false  amended  schedule  is  a  violation,  Levy  vs.  U.  S., 
271  F.  942. 

Sec.  75m.m.     Argument — Improper. 

See  U.  S.  vs.  Phelan,  252  F.  891.     See  Sec.  22. 

Sec.  75m.m.m.     Injunction. 

A  Federal  court  will  not  grant  an  injunction  to  stay  the 
taking  of  depositions,  Stewart  vs.  Arthur,  267  F.  184. 

The  Federal  court  will  grant  an  injunction  to  prevent  a 
United  States  Attorney  from  enforcing  a  void  statute, 
Lamborn  vs.  U.  S.,  Attorney,  265  F.  944. 

Sec.  75n.     Criminal  Intent. 

The  human  way  of  charging  the  intent  is  from  the  act. 
In  Bentall  vs.  U.  S.,  262  F.  744,  a  divided  Circuit  Court 
of  Appeals  held  that  such  presumption  is  rebuttable, 
where  an  act,  to  be  criminal,  must  be  knowingly  and  wil- 
fully done,  not  only  a  knowledge  of  the  act  is  implied,  but 
a  determination,  with  a  bad  intent,  to  do  it.  The  pre- 
sumption of  wrongful  intent  of  a  defendant,  based  upon 
the  natural  result  of  his  words  or  acts,  is  not  conclusive, 
but  rebuttable,  and  this  rebutting  evidence  may  take  the 
form  of  testimony  by  defendant  that  he  intended  no  such 
results  and  an  instruction  in  a  criminal  case,  which  stated 
without  qualification,  that  a  man  could  not  say  that  he 
did  not  intend  to  do  a  certain  thing,  when  such  thing  was 
the  natural  result  of  his  act,  was  held  erroneous  where  a 
specific  intent  was  essential  to  the  crime  charged,  and  the 
defendant  testified  that  he  did  not  have  such  intent. 

In  the  chapter  on  National  Banks,  herein,  will  be  found 
a  number  of  citations  shedding  additional  light  upon  the 
word  wilfully  and  the  presumption  of  the  intent  from 
act  itself. 

Sec.  75n.n.     Interest  on  Criminal  Judgment. 

Interest  is  not  collectable  on  a  criminal  judgment,  U.  S. 
vs.  Jacob,  254  F.  714. 

Sec.  75n.n.n     Indian. 

A  homestead  acquired  by  an  indian  on  public  land  in 
a  state  under  the  same  homestead  law  is  not  land  "re- 


Practice  Helps.  243 

served for  the  exclusive  use  of  the  United 

States,"  within  Criminal  Code,  272,  and  a  Federal  court 
is  without  jurisdiction  to  try  a  criminal  offense  committed 
thereon,  U.  S.  vs.  Lewis,  253  F.  469. 

In  a  prosecution  under  Sec.  2139,  declaring  that  any 
person  who  shall  sell  intoxicants  to  any  indian  ward  of 
the  government  under  the  charge  of  an  indian  agent  shall 
be  punished,  it  is  no  defense  that  the  seller  did  not  know 
the  purchaser  was  an  indian  ward  of  the  government  un- 
der charge  of  an  indian  agent,  the  statute  not  using  the 
words  "knowingly  or  wilfully"  in  connection  with  the 
sale,  and  the  seller  is  guilty,  though  he  believed  the  pur- 
chaser was  a  person  of  another  race,  Feeley  vs.  U.  S.,  236 
F.  903. 

See  the  following  cases  for  introducing  liquor  into  the 
Indian  Territory,  Fielder  vs.  U.  S.,  227  F.  832;  Tsabell 
vs.  IT.  S.,  227  F.  788. 

Sec.  75o.     False  Claim  for  Damages  to  Shipment. 

In  a  prosecution  under  the  Act  to  Regulate  Commerce 
Feb.  4, 1887,  C.  104,  Sec.  10,  Par.  3,  24  Stat.  382,  as  amend- 
ed by  the  Act  of  Mar.  2,  1889,  against  a  corporation  for 
fraudulent  claim  for  injury  to  shipment,  a  corporate  of- 
ficer who  signed  letters  making  claims  for  injuries  to  a 
shipment  is  entitled  to  testify  as  to  his  intent,  it  appear- 
ing that  the  claims  were  prepared  by  his  bookkeeper,  for 
the  corporation  could  act  only  through  is  officers  or 
agents,  and  the  intent  of  the  officer  is  that  of  the  corpora- 
tion, Laser  Grain  Company  vs.  U.  S.,  250  F.  826. 

The  criminal  portions  of  the  act  are  as  follows: — 

"Sec.  2.  False  billing  or  classification  by  carrier  or  officer  for  trans- 
portation of  property  at  less  than  regular  rates.  Any  common  carrier 
subject  to  the  provisions  of  this  Act,  or,  whenever  such  common 
carrier  is  a  corporation,  any  officer  or  agent  thereof,  or  any  person 
acting  for  or  employed  by  such  corporation,  who,  by  means  of  false 
billing,  false  classification,  false  weighing,  or  false  report  of  weight, 
or  by  any  other  device  or  means,  shall  knowingly  and  wilfully  assist, 
or  shall  wilfully  suffer  or  permit,  any  person  or  persons  to  obtain 
transportation  for  property  at  less  than  the  regular  rates  then  estab- 
lished and  in  force  on  the  line  of  transportation  of  such  common 
carrier,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall,  upon  con- 
viction thereof  in  any  court  of  the  United  States  of  competent  juris- 
diction within  the  district  in  which  such  offense  was  committed,  be 


244  Federal  Criminal  Law  Procedure. 

subject  to  a  fine  of  not  exceeding  five  thousand  dollars,  or  imprison- 
ment in  the  penitentiary  for  a  term  of  not  exceeding  two  years,  or 
both,  in  the  discretion  of  the  court,  for  each  offense 

"Sec.  3.  Obtaining  or  attempting  to  obtain  transportation  for  prop- 
erty at  less  than  regular  rates,  by  false  billing  or  classification  or  by 
making  false  claim  for  damages.  Any  person,  corporation,  or  company, 
or  any  agent  or  officer  thereof,  who  shall  deliver  property  for  trans- 
portation to  any  common  carrier  subject  to  the  provisions  of  this 
Act,  or  for  whom,  as  consignor  or  consignee,  any  such  carrier  shall 
transport  property,  who  shall  knowingly  and  wilfully,  directly  or  indi- 
rectly, himself  or  by  employe,  agent,  officer,  or  otherwise,  by  false  bill- 
ing, false  classification,  false  weighing,  false  representation  of  the  con- 
tents of  the  package  or  the  substance  of  the  property,  false  report  of 
weight,  false  statement,  or  by  any  other  device  or  means,  whether  with 
or  without  the  consent  or  connivance  of  the  carrier,  its  agent,  or  officer, 
obtain  or  attempt  to  obtain  transportation  for  such  property  at  less 
than  the  regular  rates  then  established  and  in  force  on  the  line  of 
transportation;  or  who  shall  knowingly  and  wilfully,  directly  or 
indirectly,  himself  or  by  employe,  agent,  officer,  or  otherwise,  by  false 
statement  or  representation  as  to  cost,  value,  nature,  or  extent  of 
injury,  or  by  the  use  of  any  false  bill,  bill  of  lading,  receipt,  voucher, 
roll,  account,  claim,  certificate,  affidavit,  or  deposition,  knowing  the 
same  to  be  false,  fictitious,  or  fraudulent,  to  contain  any  false,  fictitious 
or  fraudulent  statement  or  entry,  obtain  or  attempt  to  obtain  any  allow- 
ance, refund,  or  payment  for  damage  or  otherwise  in  connection  with 
or  growing  out  of  the  transportation  of  or  agreement  to  transport 
such  property,  whether  with  or  without  the  consent  or  connivance 
of  the  carrier,  whereby  the  compensation  of  such  carrier  for  such 
transportation,  either  before  or  after  payment,  shall  in  fact  be  made 
less  than  the  regular  rates  then  established  and  in  force  on  the  line 
of  transportation,  shall  be  deemed  guilty  of  fraud,  which  is  hereby 
declared  to  be  a  misdemeanor,  and  shall,  upon  conviction  thereof 
in  any  court  of  the  United  States  of  competent  jurisdiction  within  the 
district  in  which  such  offense  was  wholly  or  in  part  committed,  be 
subject  for  each  offense  to  a  fine  of  not  exceeding  five  thousand  dollars 
or  imprisonment  in  the  penitentiary  for  a  term  of  not  exceeding  two 
years,  or  both,  in  the  discretion  of  the  court:  Provided,  That  the 
penalty  or  imprisonment  shall  not  apply  to  artificial  persons." 

The  Supreme  Court  of  the  United  States  held  that  the 
foregoing  penal  statutes  apply  to  consignee  as  well  as  to 
consignor,  U.  S.  vs.  Union  Manufacturing  Company,  240 
U.  S.,  605. 

Sec.  75o.o.  Insanity — From  Drugs  or  Liquor — De- 
fense When. 


Practice  Helps.  245 

In  the  case  of  Perkins  vs.  U.  S.,  228  F.  408,  the  Circuit 
Conrt  of  Appeals  for  the  4th  Circuit  wrights  interesting- 
ly and  learnedly  concerning  the  defense  of  insanity  to  a 
criminal  prosecution  when  such  insanity  is  the  result  of 
voluntary  intoxication  or  drunkness  or  delirium. 

One  may  not  hide  behind  a  mental  or  physical  condi- 
tion produced  by  a  voluntary  use  of  intoxicants,  and  vet 
being  in  that  condition  the  law  does  not  view  with  the 
same  degree  of  severity  that  it  does  when  the  doer  is 
sober  and  normal. 

Sec.  75o.o.o.     Court — Meaning  of. 

A  trial  by  a  court  means  by  twelve  men  presided  over 
by  a  judge  and  the  judge  cannot  be  substituted  during  the 
trial,  and  the  judge  must  be  present,  Freeman  vs.  U.  S., 
227  F.  732. 

Sec.  75p.     Viruses,  Serum,  etc. 

The  Act  of  1902,  32  Stat.  728,  C.  1378,  Sec.  1,  which 
provides  certain  regulations  for  the  sale,  production, 
labelling,  and  licensing  of  the  sale  of  viruses,  serums, 
toxins,  anti-toxins,  etc.,  and  provides: 

"Any  person  who  shall  violate,  or  aid  or  abet  in  violating,  any  of 
the  provisions  of  the  Act  shall  be  punished  by  a  fine  not  exceeding 
five  hundred  dollars  or  by  imprisonment  not  exceeding  one  year,  or 
by  both  such  fine  and  imprisonment,  in  the  discretion  of  the  court, 
Arts.  8354-8360  Barnes  1919  Fed.  Code. 

Sec.  75p.p.    Lands — Public. 

The  attempting  or  pretending  to  sell  public  lands  is 
an  offense  under  the  Act  of  Feb.  23,  1917,  and  is  punish- 
able by  fine  not  exceeding  three  hundred  dollars,  or  by  im- 
prisonment for  a  term  not  exceeding  one  year,  or  by  both 
such  fine  and  imprisonment,  Sec.  10226A.  of  1918  Com- 
piled Statutes. 

Sec.  75p.p.p.     Lever  Act. 

The  Act  of  Aug.  10,  1917,  Sec.  4,  as  amended  by  the~\ 
Act  of  Oct.  22,  1919,  Sec.  2,  is  unconstitutional  because 
it  does  not  define  the  offense  with  sufficient  certainty, 
denounces  the  unjust  and  unreasonable  charge,  and,  of 
course,  there  is  no  standard  as  to  what  is  unjust  or  as  to 
what  is  unreasonable,  U.  S.,  vs.  Cohen,  264  F.  218;  Hills- 
boro  vs.  Knotts,  273  F.  221;  41  Sup.  Ct.  Rep.  298;  Weeds 


246  Federal  Criminal  Law  Procedure. 

vs.  U.  S.  41  Sup.  Ct.  Rep.  306;   People  vs.  U.  S.,  271  F. 
790. 

Sec.  75q.     Letter  Carriers. 

Letter  carriers  by  virtue  of  their  appointment  from 
the  competitive  classified  list  of  the  Federal  Civil  Sen  ice 
Commission,  acquire  rights  which  they  cannot  be  de- 
prived of  without  due  process  of  law,  and  may  not  be 
removed  without  a  hearing  on  the  charges,  U.  S.  vs.  Post 
master,  221  F.  687. 

Sec.  75q.q.     United  States  Marshal — Deputies,  etc. 

For  a  discussion  of  appointment  and  removal  see  U.  S.« 
vs.  Lapp,  244  F.  377. 

Sec.  75q.q.q.     Memory — Refreshing. 

For  a  discussion  of  the  rule  in  the  Federal  Court  see 
232  F.  444.  Dewitt  vs.  Skinner;  Bates  vs.  Breble,  151  U. 
S.,  149;  Vicksburg  vs.  O'Brien,  119  U.  S.  99;  Putman  vs. 
U.  S.  162  LT.  S. 

Sec.  75r.  Mandamus — To  Compel  United  States  Court, 
etc. 

The  Supreme  Court  of  the  United  States  will  compel,  by 
mandamus,  the  judge  of  a  Federal  court  to  perform  a 
service  which  it  is  right  and  lawful  should  be  performed; 
as  the  breaking  of  a  seal  on  evidence  and  documents,  etc., 
ex  parte  Uppercu,  239  U.  S.,  435. 

Sec.  75r.r.     Motion  to  Quash. 

The  overruling  of  a  motion  to  quash  or  the  granting  of 
a  motion  to  quash  is  in  the  discretion  of  the  court,  Wetzel 
vs.  U.  S.,  233  F.  984. 

Sec.  75r.r.r.     Newspaper. 

A  false  affidavit  as  to  the  circulation  is  not  an  offense, 
U.  S.  vs.  Smith,  269  F.  191. 

Sec.  75s.     Passports. 

The  Act  of  June  15,  1917,  creates  certain  offenses  with 
reference  to  passports,  such  as  forgery  or  altering,  Sec. 
9767,  Barnes  Fed.  Code,  which  provides  a  fine  of  one 
thousand  dollars  and  imprisonment  of  not  more  than 
three  years;  and  the  making  of  false  statements  in  an 
application  for  a  passport  and  the  use  of  a  passport  be- 
longing to  another  and  forging  or  altering  are  punishable 
by  a  fine  of  not  more  than  two  thousand  dollars  or  im- 


Practice  Helps.  247 

prisonment  not  more  than  five  years,  or  both,  40  Stat. 
227;  See.  6991  Barnes  Fed.  Code,' 1919. 

Sec.  75s. s.     Fraud  Order — By  Postmaster  General. 

■ 

A  fraud  order  may  be  reviewed,  when  unlawful.  Masses 
vs.  Patten,  244  F.  535;   Anderson  vs.  Patten,  247  F.  382. 

Sec.  75s.s.s.     Warrant  Issued  by  the  President. 

The  President  may  issue  a  warrant,  when,  Minotto  ys. 
Bradley,  252  F.  600. 

Sec.  75t.     Prisoner — Prisoners. 

Place  of  confinement  and  change  thereof,  Keliher  ys. 
Mitchell,  250  F.  904;  Whittaker  ys.  Brannan,  252  F.  556. 

Sec.  75t.t.     Subpoena  Duces  Tecum. 

A  subpoena  duces  tecum  may  issue  in  a  criminal  case, 
when,  248  F.  137. 

Sec.  75t.t.t.  Regulations  by  Commissioner  Internal 
Revenue. 

Certain  regulations  are  not  authorized  and  are  invalid, 
when,  238  F.  650. 

Sec.  75u.     Revenue  Law — What  Is. 

Warren  vs.  Flower,  29  Fed.  cases,  255;  Ward  vs.  Con- 
gress, 99  F.  598;  Bryant  vs.  Robinson,  149  F.  321;  192 
F.  596;  192  F.  583;  162  F.  937;  218  XL  S.  517;  page  378, 
Sec.  Series  Words  and  Phrases. 

Sec.  75u.u.     Repeal  of  Act — Right  to  Prosecute. 

De  Four  vs.  IT.  S.,  260  F.  597. 

Sec.  75u.u.u.     Sale — What  Is. 

Scoggins  vs.  IT.  S.,  255  F.  825. 

Sec.  75v.     Seamen. 

For  a  discussion  of  the  Act  of  Mar.  4,  1915,  and  the 
preceding  acts  relating  to  seamen  and  their  offenses,  etc.. 
see  233  F.  708,  Hamilton  vs.  IT.  S.,  268  F.  15. 

Must  go  to  end  of  voyage  though  time  under  contract 
has  expired,  274  F.  691. 

See.  75v.v.     Immunity  Promises. 

The  District  Attorney  should  notify  the  other  defend- 
ants who  may  be  jointly  indicted  of  any  immunity  prom- 
ise made  by  him  to  a  co-defendant,  244  F.  140;  a  trade  to 
turn  state's  evidence  made  by  a  Collector  of  Internal 
Revenue  need  not  be  followed  by  the  District  Attorney, 
Gladstone  vs.  U.  S.,  248  F.  117."  See  Sec.  39  &  39a. 


248  Federal,  Criminal  Law  Proceduke. 

Sec.  75v.v.v.     Strikers. 

See  Clayton  Act;  252  F.  722. 

Sec.  75w.     Trading  with  the  Enemy  Act. 
See  U.  S.  vs.  Van  Werkhoven,  250  F.  311;   U.  S.  vs. 
Welsh,  250  F.  309. 

Sec.  75w.w.     United  States — Suits  Against. 

It  is  not  a  suit  against  the  United  States  when  the  law 
is  invalid  and  an  injunction  is  sought  against  the  officer 
who  would  enforce  it,  Hanna  vs.  Clyne,  263  F.  599. 

Sec.  75w.w.w.     Transportation — Government  Control. 

See  Act  of  March  21,  1918,  C.  11,  for  offenses  and  pun- 
ishment for  interfering  with  possession  and  use  and  em- 
bezzlement, etc. 

Sec.  75x.     Unknown. 

Use  in  indictment  see  Coffin  vs.  U.  S.,  156  U.  S.,  862; 
Roberts  vs.  U.  S.,  248  F.  874;  Feener  vs.  U.  S.,  249  F.  425. 

Sec.  75x.x.     Venue. 

A  change  of  venue  on  the  ground  of  local  prejudice  is 
within  the  sound  discretion  of  the  court,  Stroud  vs.  U.  S., 
251  U.  S.,  15;  40  Sup.  Ct.  Rep.  50. 

An  indictment  must  be  found  in  the  division  of  the  dis- 
trict where  the  offense  was  committed,  U.  S.  vs.  Chen- 
nault,  230  F.  942;  Yeates  vs.  U.  S.,  254  F.  60;  Sec.  42 
Judicial  Code;  U.  S.  vs.  Lombardo;  Brown  vs.  U.  S., 
257  F.  46;  Brown  vs.  U.  S.,  41  Sup.  Ct.  Rep.  501. 

Sec.  75x.x.x.     State  Court — Jurisdiction. 

The  intent  to  deprive  state  courts  of  jurisdiction  over 
offenses  must  be  claimed,  Caldwell  vs.  Parker,  U.  S.,  Su- 
preme Court,  April  1920. 

Sec.  75y.    Wife — Cannot  be  Witness  for  Husband. 

This  doctrine  was  announced  by  the  Supreme  Court  in 
Jin  Foey  Moy  vs.  U.  S.,  41  Sup.  Ct.  Rep.  98;  rule  applies 
to  husband  as  well  as  wife,  Adams  vs.  U.  S.,  259  F.  214. 

Sec.  75z.  Trial  of  Defendant  While  He  is  Serving  a 
Term  of  Imprisonment. 

In  ex  parte  Lamar,  274  F.  160,  Circuit  Judge  Morton 
held  that  a  defendant  who  is  serving  a  term  of  imprison- 
ment for  a  criminal  offense  may  be  tried  for  another  of- 
fense and  a  judgment  upon  second  conviction  is  not  void 
for  uncertainty  which  provides  that  it  shall  begin  to  run 
at  the  expiration  of  the  first  judgment. 


CHAPTER  V. 

COUNTERFEITING    AND    OTHER    OFFENSES    AGAINST    THE 
CURRENCY  COINAGE  AND   OTHER   SECURITIES. 

§  77.     Definition  of  Obligation  and  Other  Securities. 

78.  Illustrative  Cases. 

78a.  Using  Plates,  Having  in  Possession,  Similitude,  Unsigned  Bank- 
notes. 

79.  The  Neall  Case — Deheuns  Case — Indictment,  etc. 

80.  Forging  or  Counterfeiting  U.  S.  Securities. 

81.  Forging  or  Counterfeiting  U.  S.  Securities  and  National  Bank- 

notes. 

82.  Confederate  Money;     Likeness  and   Similitude. 

83.  Other  Securities  Including  State  Banknotes. 

84.  Allegation   of  Knowledge  in  Counterfeiting. 
84a.  Allegation   of  Knowledge  Continued. 

85.  Description  of  Obligation  or  Counterfeit. 

86.  Circulating  Bills  of  Expired  Corporation. 

87.  Mutilating  or  Defacing  National  Banknote. 

88.  Imitating  National  Banknotes;    Printing  Advertisements  There- 

on. 

89.  Imitating  U.  S.  Securities  or  Printing  Advertisements  Thereon; 

Business  Cards. 

90.  Notes  Less  Than  One  Dollar,  Not  to  be  Issued. 

91.  Counterfeiting  Gold  or  Silver  Coin  or  Bars. 

92.  Resemblance  or   Similitude. 

92a.  Resemblance  or  Similitude  Continued;    Jury  Question. 

92b.  Advertisements — Like  Coins,  etc. 

93.  Counterfeiting  Minor  Coins. 

94.  Making  or  Uttering  Coins  in  the  Resemblance  of  Money. 

95.  Making  or  Issuing  Devices  of  Minor  Coins. 

96.  Statutes    Relating   to    Coinage,    Mutilation,    Debasing,    Counter- 

feiting of  Dies,  Foreign  Coins. 
96a.  Counterfeiting  Dies,  Hubs,  Molds,  etc. 

97.  Counterfeiting  Obligations  to  be  Forfeited. 

98.  Search  Warrant  in  Aid  of  Above  Statutes. 

§  77.  By  the  terms  of  Section  147  of  the  new  Code, 
which  is  a  substantial  re-enactment  of  old  Section  5413, 
the  words  "obligation  or  other  security  of  the  United 
States"  are  denned  to  mean  all  bonds,  securities  of  in- 
debtedness, national  bank  currency,  coupons,  United 
States  notes,  Treasury  notes,  gold  certificates,  silver  cer- 
tificates, certificates  of  deposit,  bills,  checks  or  drafts  for 
money  drawn  by  or  upon  authorized  officers  of  the  United 

(249) 


250  Federal,  Criminal  Law  Procedure. 

States,  stamps  and  other  representatives  of  value  of 
whatever  denomination,  which  have  been  or  may  be  is- 
sued under  any  Act  of  Congress,  and  the  words  "gold 
certificates"  and  "silver  certificates"  were  not  in  the 
old  section. 

When,  therefore,  in  this  chapter,  or  in  any  of  the  sec- 
tions cited  and  treated,  the  words  "obligation  or  other 
security  of  the  United  States"  are  used,  they  will  be  un- 
derstood to  mean  and  include  the  securities  above  men- 
tioned, and  any  other  representatives  of  value  issued  by 
authority  of  Congress.  Judge  Wheeler,  in  discharging 
Houghton  from  the  custody  of  the  state  officers,  who  held 
him  for  violation  of  a  state  statute  against  counterfeiting, 
held,  7  Federal,  657,  that  the  bills  issued  by  national 
banks  are  securities  of  the  United  States,  which  Congress 
has  power  to  protect  by  punishing  the  counterfeiting  of 
them.  He  also  held  in  the  same  case  that  the  United 
States,  in  pursuance  of  Constitutional  and  statutory  law, 
have  the  exclusive  right  to  prosecute  for  counterfeiting 
Federal  obligations,  even  though  there  be  a  state  statute 
against  the  same  offense,  and  that  a  Federal  Court,  will, 
upon  habeas  corpus,  discharge  a  defendant  held  by  the 
state  authorities  for  the  offense  of  counterfeiting.  To 
the  same  effect  is  the  decision  by  the  same  judge  in  the  8 
Federal,  897,  ex  parte  Houghton.  In  United  States  vs. 
Albert,  45  Federal,  552,  Judge  Pardee  held  that  an  indict- 
ment which  charged  the  defendant  with  uttering  and 
publishing  a  certain  false,  forged,  and  altered  United 
States  Treasury  Warrant,  was  insufficient  to  sustain  a 
verdict  of  guilty,  when  the  evidence  showed  that  the  de- 
fendant had  really  negotiated  a  genuine  check,  drawn  by 
an  authorized  officer  of  the  United  States  upon  an  As- 
sistant Treasurer,  but  had  forged  the  endorsement  of  the 
name  of  the  payee.  Of  course,  the  indictment  could  have 
been  drawn  so  as  to  allege  the  forgery  of  the  endorse 
ment,  which  would  have  been  entirely  sufficient,  under 
the  statute;  but,  inasmuch  as  the  indictment  charged  the 
whole  instrument  to  be  false  and  forged,  the  proof  did 
not  sustain  the  charge,  because,  as  a  matter  of  fact,  the 
instrument  itself  was  not  forged,  but  genuine,  the  only 
forged  part  being  the  endorsement. 


CoTJNTEEFEITING,  ETC.  251 


The  Circuit  Court  of  Appeals  for  the  Second  Circuit,  in 
Krakowski  vs.  United  States,  161  Federal,  page  88,  held 
that  it  was  not  sufficient  to  warrant  a  conviction  under 
Section  5430,  which  makes  it  a  criminal  offense  for  any 
person  to   have  or  retain  in  his  control  or  possession 
"after  a  definitive  paper  has  been  adopted  by  the  Sec- 
retary of  the  Treasury  for  the  obligations  and  other  se- 
curities of  the  United  States,  any  similar  paper  adapted 
to  the  making  of  any  such  obligation  or  other  security, 
except  under  the  authority  of  the  Secretary  of  the  Treas- 
ury, or  some  other  proper  officer  of  the  United  States.' : 
where  the  proof  showed  that  the  defendant  had  in  his 
possession  paper  which  might  be  used  to  make  counter- 
feit obligations  or  securities.    In  other  words,  the  Court 
held  that  that  portion  of  the  section  included  as  penal 
having  in  possession  without  authority,  of  t lie  distinctive 
paper  itself  or  of  some  paper  adapted  to  the  making  of 
Government  obligations  and  securities.    5430,  it  will  be 

borne  in  mind,  is 

§  78.     New  Section  150  upon  which  the  following  cases 

may  be  cited: 

United  States  vs.  Williams,  14  Federal,  550. 

United  States  vs.  Smith,  40  Federal,  755. 

United  States  vs.  Stevens,  52  Federal,  120. 

United  States  vs.  Bamett,  HI  Federal,  369. 

United  States  vs.  Pitts,  112  Federal,  522. 

United  States  vs.  Conners,  111  Federal,  732. 

§  78a.  Using  Plates— Having  in  Possession  Obliga- 
tion Without  Authority,  Etc.— Similitude— Unsigned 
Bank  Notes.— Section  150  of  the  new  Code  providesas 
follows:  "  Whoever  having  control,  custody,  or  possession 
of  anv  plate,  stone,  or  other  thing,  or  any  part  thereof, 
from  which  has  been  printed,  or  which  may  be  prepared 
by  direction  of  the  Secretary  of  the  Treasury  for  the 
purpose  of  printing,  any  obligation  or  other  security  of 
the  United  States,  shall  use  such  plate,  stone  or  other 
thing  or  any  part  thereof,  or  knowingly  suffer  the  same 
to  be  used  for  the  purpose  of  printing  any  such  or  similar 
obligation  or  other  security,  or  any  part  thereof  except 
as  may  be  printed  for  the  use  of  the  United  States  by 


252  Federal  Criminal  Law  Procedure. 

order  of  the  proper  officer  thereof;  or  whoever  by  any 
way,  art,  or  means  shall  make  or  execute,  or  cause  or 
procure  to  be  made  or  executed,  or  shall  assist  in  making 
or  executing  any  plate,  stone,  or  other  thing,  or  bring 
into  the  United  States  or  any  place  subject  to  the  juris- 
diction thereof,  from  any  foreign  place,  any  such  plate, 
stone,  or  other  thing,  except  under  the  direction  of  the 
Secretary  of  the  Treasury  or  other  proper  officer,  or  with 
any  other  intent,  in  either  case,  than  that  such  plate, 
stone  or  other  thing  be  used  for  the  printing  of  the  obli- 
gations or  other  securities  of  the  United  States;  or  who- 
ever shall  have  in  his  control,  custody,  or  possession  any 
plate,  stone,  or  other  thing,  from  which  any  such  obliga- 
tion or  other  security  has  been  printed,  with  intent  to 
use  such  plate,  stone,  or  other  thing,  or  to  suffer  the  same 
to  be  used  in  forging  or  counterfeiting  any  such  obliga- 
tion or  other  security,  or  any  part  thereof;  or  whoever 
shall  have  in  his  possession  or  custody,  except  under 
authority  from  the  Secretary  of  the  Treasury  or  other 
proper  officer,  any  obligation  or  other  security  made  or 
executed,  in  whole  or  in  part,  after  the  similitude  of  any 
obligation  or  other  security  issued  under  the  authority 
of  the  United  States,  with  intent  to  sell  or  otherwise  use 
the  same;  or  whoever  shall  print,  photograph,  or  in  any 
other  manner  make  or  execute,  or  cause  to  be  printed, 
photographed,  made,  or  executed,  or  shall  aid  in  printing, 
photographing,  making  or  executing  any  engraving,  pho- 
tograph, print,  or  impression  in  the  likeness  of  any  such 
obligation  or  other  security  or  any  part  thereof,  or  shall 
sell  any  such  engraving,  photograph,  print  or  impression, 
except  to  the  United  States,  or  shall  bring  into  the  United 
States  or  any  place  subject  to  the  jurisdiction  thereof, 
from  any  foreign  place  any  such  engraving,  photograph, 
print  or  impression,  except  by  direction  of  some  proper 
officer  of  the  United  States;  or  whoever  shall  have  or 
retain  in  his  control  or  possession,  after  a  distinctive 
paper  has  been  adopted  by  the  Secretary  of  the  Treasury 
for  the  obligations  and  other  securities  of  the  United 
States,  any  similar  paper  adapted  to  the  making  of  any 
such  obligation  or  other  security,  except  under  the  au- 


Counterfeiting,  Etc.  25:5 

thority  of  the  Secretary  of  the  Treasury  or  some  other 
proper  officer  of  the  United  States,  shall  he  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  fifteen  years,  or  both." 

The  having  in  possession,  under  the  above  statute,  of 
an  unsigned  and  unissued  treasury  note  or  national  bank 
note  would  be  an  offense,  the  question,  however,  of  simili- 
tude being  submitted  to  the  jury  for  their  determination 
as  to  whether  or  not  the  failure  of  such  note  to  bear  the 
signatures  of  the  officers  of  the  issuing  bank  would  be 
calculated  to  deceive  or  not  deceive  a  person  of  ordinary 
intelligence.     In  the  case  of  Wiggins  vs.  The  United 
States,  214  Federal,  970,  Judge  Adams  for  the  Circuit 
Court  of  Appeals,  in  affirming  a  conviction  under  this 
statute,  held  that  an  indictment  for  the  illegal  issuing 
and  possession  of  an  unsigned  national  bank  note,  under 
this  statute,  would  not  be  subject  to  demurrer,  on  the 
mere  ground  that  upon  the  face  of  such  note  it  appeared 
never  to  have  been  issued  and  therefore  appeared  not 
to  be  an  obligation  of  the  United  States.    In  overruling 
such  demurrer,  it  was  said,  substance,  that  the  indict- 
ment definitely  enough  charged  that  the  instrument  in 
the  possession  of  the  defendant  was  made  in  part  after 
and  in  similitude  of  an  obligation  or  security  issued  un- 
der the  authority  of  the  United  States  and  probably  for 
the  purpose  of  demurrer  the  allegation  touching  simili- 
tude should  be  treated  as  true,  but  as  the  note  was  set 
forth  in  the  indictment,  it  may  be  properly  said  that  its 
contents  and  display  afforded  ample  evidence  for  sub- 
mission to  the  jury  of  the  question  whether  it  was  calcu- 
lated  to   deceive   an  unsuspecting  person  of   ordinary 
prudence  and  incline  him  to  accept  it  as  good  money, 
notwithstanding  the  fact  that  no  president's  or  cashier's 
name  appeared  upon  it.    If  that  question  is  answered  in 
the  affirmative,  the  similitude  is  sufficiently  established 
within  the  meaning  of  the  law. 

Prior  to  the  Act  of  July  28,  1892,  27  Stats.  322,  which 
provided  in  substance,  that  the  provisions  of  the  Revised 
Statutes  of  the  United  States  providing  for  the  redemp- 
tion of  national  banks  notes,  shall  apply  to  all  national 


254  Federal  Criminal  Law  Procedure. 

bank  notes  that  have  been  or  may  be  issued  to  or  received 
by  any  national  bank,  notwithstanding  such  notes  may 
have  been  lost  by  or  stolen  from  the  bank,  and  put  in 
circulation  without  the  signature  or  upon  the  forged  sig- 
nature of  the  president  or  vice  president  and  cashier,  it 
would  not  have  been  an  offense  to  pass,  utter  or  publish 
an  unsigned  national  bank  note.  U.  S.  vs.  Williams,  14 
Federal,  550;  U.  S.  vs.  Sprague,  48  Federal,  828;  TJ.  S. 
vs.  Barrett,  111  Federal,  369. 

Judge  Eudkin,  in  U.  S.  vs.  Webber,  210  Federal,  973, 
in  speaking  of  the  meaning  of  the  word  similitude  or  re- 
semblance and  similitude  as  contained  in  the  foregoing 
statute  and  the.  meaning  thereof,  said  that  it  was  not 
necessary  that  the  similitude  or  resemblance  should  be  so 
great  as  to  deceive  experts,  bank  officers  or  cautious  men. 
It  is  sufficient  if  the  fraudulent  obligation  bears  such 
likeness  or  resemblance  to  any  of  the  genuine  obligations 
or  securities  issued  under  the  authority  of  the  United 
States  as  is  calculated  to  deceive  an  honest,  sensible  and 
unsuspecting  person  of  ordinary  observation  and  care 
when  dealing  with  a  person  supposed  to  be  upright  and 
honest.    See  Sections  92  and  92a. 

§  79.  The  Neall  Case. — The  Circuit  Court  of  Appeals 
for  the  Ninth  Circuit,  in  the  case  of  Neall  vs.  United 
States,  118  Federal,  699,  determined  that  one  who  forges 
a  certificate  of  deposit  purporting  to  have  been  issued 
on  behalf  of  the  United  States  to  an  enlisted  soldier,  by 
signing  thereto  the  name  of  the  person  described  as  an 
officer  and  deputy  Paymaster  General,  has  forged  an 
" obligation  of  the  United  States,"  and  an  indictment 
therefor  which  alleged  in  the  same  count  an  intent  to 
defraud  both  the  United  States  and  a  soldier  in  the  army, 
was  not  bad  for  duplicity,  because,  said  the  Court,  it  is 
impossible  in  such  a  case  to  aver  or  prove  with  certainty 
a  specific  intent  to  defraud  either  one  rather  than  the 
other,  and  the  law  will  impute  to  the  act  an  intent  to 
defraud  all  who  might  have  been  thereby  defrauded. 

That  the  intent  involved  in  the  old  statute  and  in  the 
new  is  general,  is  also  determined  in  the  case  of  United 
States  vs.  Jolly,  37  Federal,  118.    In  De  Lemos  v§,  United 


Counterfeiting,  Etc.  255 

States,  91  Federal,  497,  the  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit  quashed  an  indictment  for  forgery  un- 
der old  Section  5414,  where  the  proof  showed  the  forgery 
of  an  endorsement  on  a  draft,  because  the  indictment 
failed  to  charge  that  the  genuine  draft  with  the  forged 
endorsement,  constituted  together  a  forged  obligation  of 
the  United  States.  In  other  words,  the  decision  is  in 
line  with  the  Albert  case  referred  to  above.  In  the  De 
Lemos  case,  the  Court  said  that  an  indictment  which 
avers  that  the  draft  itself  constituted  the  obligation  which 
was  forged,  and  which,  by  every  averment,  shows  that 
the  forgery  consisted  in  the  false  making  of  the  endorse- 
ment, is  in  itself  repugnant,  and  does  not  properly  lay 
the  offense. 

§  80.  Forging  or  Counterfeiting  United  States  Securi- 
ties.— Section  148  of  the  new  Code  takes  the  place  and  is 
in  the  same  words  as  old  Section  5414,  and  what  has  been 
observed  and  the  citations  that  have  been  given  are  au- 
thorities upon  this  new  section,  which  reads  as  follows: 

"Whoever,  with  intent  to  defraud,  shall  falsely  make,  forge,  coun- 
terfeit, or  alter  any  obligation  or  other  security  of  the  United  States 
shall  be  fined  not  more  than  five  thousand  dollars  and  imprisoned  not 
more  than  fifteen  years." 

Bearing  in  mind  what  has  been  said  with  reference  to 
obligation  or  other  security  of  the  United  States,  it  will 
be  interesting  to  cite  in  this  connection  Section  149  of  the 
new  Code,  which  takes  the  place  of  the  old  Section  5415, 
and  which  reads  as  follows: 

"Whoever  shall  falsely  make,  forge  or  counterfeit,  or  cause  or  procure 
to  be  made,  forged,  or  counterfeited,  or  shall  willingly  aid  or  assist  in 
falsely  making,  forging  or  counterfeiting,  any  note  in  imitation  of.  or 
purporting  to  be  in  imitation  of,  the  circulating  notes  issued  by  any 
banking  association  now  or  hereafter  authorized  and  acting  under 
the  laws  of  the  United  States;  or  whoever  shall  pass,  utter,  or  publish, 
or  attempt  to  pass,  utter,  or  publish,  any  false,  forged,  or  counterfeited 
note,  purporting  to  be  issued  by  any  such  association  doing  a  banking 
business,  knowing  the  same  to  be  falsely  made,  forged,  or  counter- 
feited; or  whoever  shall  falsely  alter,  or  cause  or  procure  to  be 
falsely  altered,  or  shall  willingly  aid  or  assist  in  falsely  altering,  any 
such  circulating  notes,  or  shall  pass,  utter,  or  publish,  or  attempt 
to  pass,  utter,  or  publish  as  true,  any  falsely  altered  or  spurious  cir- 


256  Federal.  Criminal  Law  Procedure. 

dilating  note  issued,  or  purporting  to  have  been  issued,  by  any  such 
banking  association,  knowing  the  same  to  be  falsely  altered  or 
spurious,  shall  be  fined  not  more  than  one  thousand  dollars  and  im- 
prisoned not  more  than  fifteen  years.'' 

In  the  same  connection,  and  in  place  of  old  Section 
5431,  is  new  Section  151,  which  relates  to  the  passing, 
selling,  concealing,  etc.,  of  forged  obligations,  and  which 
reads  as  follows: 

"Whoever,  with  intent  to  defraud,  shall  pass,  utter,  publish,  or 
sell,  or  attempt  to  pass,  utter,  publish,  or  sell,  or  shall  bring  into  the 
United  States  or  any  place  subject  to  the  jurisdiction  thereof,  with 
intent  to  pass,  publish,  utter,  or  sell,  or  shall  keep  in  possession  or 
conceal  with  like  intent,  any  falsely  made,  forged  counterfeited,  or 
altered  obligation  or  other  security  of  the  United  States,  shall  be  fined 
not  more  than  five  thousand  dollars  and  imprisoned  not  more  than 
fifteen  years." 

Attention  is  also  called  to  Section  162  of  the  new  Code, 
which  reads  as  follows: 

"Whoever  shall  so  place  or  connect  together  different  parts  of  two 
or  more  notes,  bills,  or  other  genuine  instrument  issued  under  the 
authority  of  the  United  States,  or  by  any  foreign  government,  or 
corporation,  as  to  produce  one  instrument,  with  intent  to  defraud,  shall 
be  deemed  guilty  of  forgery,  in  the  same  manner  as  if  the  parts  so  put 
together  were  falsely  made  or  forged,  and  shall  be  fined  not  more  than 
one  thousand  dollars,  or  imprisoned  not  more  than  five  years,  or  both." 

Section  156,  157,  158,  159,  160  and  161  of  the  new  Code 
elaborately  include  the  offenses  originally  comprehended 
in  the  first  volume  of  the  Supplement,  page  429,  known 
as  the  Act  of  May  16,  1884,  23  St.  Large,  page  23,  and 
relate  to  the  offenses  of  counterfeiting  notes,  bonds,  etc., 
of  foreign  governments,  passing  such  forged  notes,  bonds, 
etc.,  counterfeiting  notes  on  foreign  banks,  passing  such 
counterfeited  bank  notes,  having  in  possession  such  forged 
notes,  bonds,  etc.,  and  having  unlawfully  in  possession, 
or  using,  the  plates  for  any  such  notes,  bonds,  etc. 

The  leading  cases  under  the  old  act,  and,  therefore, 
ranking  precedents  under  the  new  sections  from  156  to 
161  inclusive,  are,  United  States  vs.  Arjona,  120  United 
States,  479,  and  Bliss  vs.  United  States,  105  Federal,  508. 
In  the  Arjona  case,  the  Supreme  Court  of  the  United 


Counterfeiting,  Etc.  25'J 

States  upheld  the  constitutionality  of  the  Act,  and  said 
that  the  United  States  not  only  had  the  power,  but  that 
it  was  their  duty  to  prevent  and  punish  the  counterfeit- 
ing within  their  jurisdiction  of  the  notes,  bonds,  and 
other  securities  issued  by  foreign  governments,  or  under 
their  authority,  and  that  an  act  to  prevent  transgression 
against  foreign  securities  did  not  have  to  declare  the  of- 
fense to  be  an  offense  against  the  law  of  nations.  In  Bliss 
vs.  United  States,  the  Court  of  Appeals  for  the  First 
Circuit,  in  affirming  a  judgment  of  conviction  against 
Bliss  for  counterfeiting  a  number  of  the  notes  of  the  Do- 
minion of  Canada  of  the  same  series  and  bearing  consecu- 
tive numbers,  held  that  the  counterfeiting  of  the  same 
at  different  times,  although  all  apparently  of  the  same 
series  and  apparently  from  the  same  plate,  constituted 
distinct  offenses,  and  a  conviction  for  one  is  no  bar  to  a 
prosecution  for  the  other. 

Sec.  80a.     U.  S.  Securities. 

The  Supreme  Court  held  in  the  case  of  U.  S.  vs.  Sacks, 
42  Sup.  Ct.  Sep.  38,  and  U.  S.  vs.  Janowitz,  42  Sup.  Ct. 
Rep.  40,  that  regulations  made  by  the  Secretary  of  the 
Treasury  under  the  Act  of  September  24th,  1917,  that 
war  savings  certificates  should  not  be  transferable  were 
binding  and  that  section  37  punishing  conspiracy  could 
be  used  in  conjunction  with  section  148  counterfeiting, 
to  successfully  punish  parties  who  purchased  war  savings 
stamps  from  the  real  owners  and  detached  them  from  the 
certificate  and  conspired  to  exchange  them  for  other  cer- 
tificates of  the  value  in  excess  of  a  hundred  dollars. 

These  two  decisions  are  very  comprehensive  and  should 
be  read  with  care  in  order  to  understand  the  full  sweep 
of  the  determination  of  the  government  to  safeguard  the 
obligations  and  securities  it  issues. 

Sec.  80a.a.     U.  S.  Securities. 

The  foregoing  statutes  with  reference  to  forgery  and 
counterfeiting  and  altering  apply  to  non-negotiable  as 
well  as  to  the  negotiable  securities  of  the  United  States 
and,  therefore,  protect  war  savings  stamps,  etc.,  U.  S.  vs. 
Eossi,  268  F.  620. 

17 


258  Federal  Criminal  Law  Procedure. 

§  81.  Forging  and  Counterfeiting  United  States  Se- 
curities and  National  Bank  Notes. — We  now  return  to  a 
discussion  of  Sections  148,  149  and  151,  heretofore  re- 
ferred to.  In  these  sections,  together  with  Section  162, 
will  be  found  practically  all  of  the  safe-guards  that  pro- 
tect the  genuine,  and  prosecute  for  the  forging  or  coun- 
terfeiting of  the  government  obligation  or  national  bank 
note.  Until  the  adoption  of  the  New  Code,  there  was  no 
statute  similar  to  the  new  Section  162.  Prosecutions  for 
alterations  of  genuine  bills  of  small  denominations,  by 
erasing  and  pasting  and  changing  the  numerals  and  word- 
ing thereon,  were  had  under  5414,  which  is  now  Section 
148. 

We  instantly  understand  that  one  who  prepares,  with 
bad  intent,  an  instrument  that  pretends  to  be  an  obliga- 
tion of  the  United  States  or  national  bank  currency,  is 
within  the  purview  of  the  statutes.  There  is  a  nice 
question,  though,  that  hinges  about  the  latitude  and 
meaning  of  the  word  "imitation"  and  the  word  "simili- 
tude" as  found  in  these  old  statutes  ajid  in  the  new  ones. 
In  Logan  vs.  United  States,  123  Federal,  291,  the  defend- 
ant had  robbed  a  train  and  secured  a  lot  of  forty  thousand 
dollars  of  unsigned  national  bank  notes,  confined  by  the 
Comptroller  of  the  Currency  to  the  National  Bank  of 
Montana,  and  thereupon  signed  fictitious  names  to  the 
notes  as  President  and  Cashier  of  the  bank,  and  passed 
them.  The  first  question  raised  by  the  defense  was,  that 
inasmuch  as  the  signatures  to  the  notes  were  those  of 
fictitious  persons,  no  forgery  could  be  laid,  which  objec- 
tion the  Court  overruled,  citing  United  States  vs.  Turner, 
7  Peters,  132,  8  Law.  Ed.,  633,  and  said: 

"The  fact  that  the  names  signed  as  President  and  Cashier  were 
fictitious  is  of  no  importance.  The  public  mischief  is  the  same  whether 
the  names  forged  are  those  of  the  genuine  officers  or  of  fictitious  per- 
sons." 

To  the  other  defense  raised  that  such  performances  did 
not  constitute  the  crime  of  forging  notes  under  Section 
5415,  the  Court  answered  that  national  bank  notes  to 
which  signatures  have  been  forged,  and  which  have  been 


Counterfeiting,  Etc.  259 

put  in  circulation,  are  redeemable  by  the  Act  of  July  28, 
1892,  27  St.,  322,  and  this  redemption  clinches  the  offense, 
rather  than  acting  as  a  defense  thereto,  and  a  conviction 
of  the  defendants  was  affirmed. 

§  82.  Confederate  Money. — In  United  States  vs.  Wil- 
son, 44  Federal,  751,  Judge  Hallett,  in  passing  upon  an 
indictment  against  Wilson  for  having  passed  a  Confed- 
erate States  note,  said: 

"It  is  only  necessary  to  say  that  the  offense  defined  in  this  section 
and  in  other  sections  which  have  been  referred  to  in  argument  upon 
this  motion,  is  that  of  passing,  uttering,  or  publishing  any  counter- 
feit note.  The  note  must  purport  to  be  issued  by  such  an  association 
doing  a  banking  business.  This,  so  far  as  disclosed,  was  not  a  coun- 
terfeit at  all.  It  was  a  genuine  note;)  that  is  to  say,  it  was  a  genuine 
note  of  the  Confederate  States  of  America,  and  therefore,  it  was  not 
counterfeit  in  the  sense  of  this  statute,  or  of  any  statute,  and  then 
it  was  not  on  its  face,  or  in  any  way,  a  note  of  any  national  bank, 
or  of  the  United  States.  There  were  no  words  to  make  it  such.  The 
counterfeit  referred  to  in  the  statute  must,  at  all  events,  have  a  greater 
resemblance  to  the  current  moneys  of  the  United  States  than  to 
anything  else.  This  note,  in  the  size  and  shape  and  color,  and  in  the 
denomination  of  the  figures  upon  it,  has  some  resemblance  to  the 
current  notes  in  circulation  as  money,  but  that  is  not  enough  to  make 
it  a  counterfeit  of  the  circulating  notes  of  the  United  States." 

To  the  same  effect  is  United  States  vs.  Kuhl,  85  Fed- 
eral, 624,  the  Court  saying  that  an  ordinary  Confederate 
States  five-dollar  note  does  not  bear  to  the  national  cur- 
rency the  similitude  contemplated  in  Revised  Statutes 
5430,  notwithstanding  such  notes  are  frequently  accepted 
by  mistake  as  money.  In  this  same  case,  the  Court  said 
that  the  "similitude"  contemplated  in  Revised  Statute 
5430  is  such  a  likeness  or  resemblance  as  to  be  calculated 
to  deceive  an  honest,  sensible,  and  unsuspecting  man  of 
ordinary  care  and  observation,  when  dealing  with  a  sup- 
posed honest  man. 

§  83.  Other  Securities,  Including  State  Bank  Notes. 
—Judge  Hanford,  in  91  Federal,  United  States  vs.  Fitz- 
gerald, left  the  question  of  similitude  and  similarity  and 
imitation  to  the  jury,  upon  a  case  against  Fitzgerald  for 
having  in  his  possession  a  hundred  shares  of  the  capital 
stock  of  the  Denver  Mining  Company,  of  the  par  value  of 


260  Federal  Criminal  Law  Procedure. 

one  thousand  dollars,  the  certificate  of  which  stock,  in 
its  size,  quality  of  paper,  style  of  printing,  resembled  a 
United  States  bond  for  the  sum  of  one  thousand  dollars, 
and  further  resembled  a  United  States  bond  for  the  said 
amount  in  that  it  had  the  words  "The  United  States" 
printed  across  the  face  thereof,  and  the  paper  also  had 
heavy  green  border  and  scroll  work  resembling  somewhat 
the  ornamentation  of  United  States  bonds.  In  leaving 
the  question  to  the  jury,  he  said: 

"The  similitude  must  be  in  such  a  degree  as  to  furnish  a  resemblance 
so  near  to  the  Government  obligations  or  securities  that  it  could  be 
used  to  deceive  a  person  of  ordinary  intelligence,  who  is  acting  with 
ordinary  care  in  a  business  transaction.  The  resemblance  is  suf- 
ficient for  the  purpose  if  you  believe  that  it  would  probably  deceive 
a  person  taken  unawares  in  dealing  with  a  person  who  he  believed  was 
acting  honestly." 

In  United  States  vs.  Stevens,  52  Federal,  120,  District 
Judge  Paul  held  in  substance  that  a  note  that  was  origi- 
nally issued  by  a  duly  authorized  state  bank,  which  was  a 
legal  note  at  the  time  of  its  issuance,  but  afterwards  be- 
came utterly  worthless  by  the  insolvency  of  the  bank, 
subjected  the  holder  thereof  to  prosecution  under  Section 
5430,  if  it  was  in  his  possession  with  intent  to  sell  or 
otherwise  use  it,  and  pass  it,  as  a  genuine  note  or  obliga- 
tion of  the  United  States.  It  is  not  thought  that  this  is 
good  law.  Congress  certainly  has  no  authority  to  pre- 
vent the  issuance  of  state  bank  notes.  It  simply  taxes 
them  out  of  existence,  and  one  who  passed  a  worthless 
state  bank  note,  contending  that  it  was  a  genuine  United 
States  obligation,  would  only  be  an  offender  against  the 
state  law  for  cheating  or  swindling.  His  statement  with 
reference  to  the  instrument  does  not,  within  the  meaning 
of  the  law,  constitute  it  a  forgery,  nor  give  it  such  like- 
ness and  similitude  as  will  make  it  contraband  under  the 
Federal  statute. 

Judge  Bellinger,  in  United  States  vs.  Conners,  111  Fed- 
eral, 734,  decided  that  a  bill  or  note  issued  by  the  state 
bank  of  New  Brunswick,  New  Jersey,  which  thereafter 
became  insolvent  and  worthless,  but  which  was  alleged 
in  the  indictment  to  be  in  the  possession  of  Conners  for 


Counterfeiting,  Etc.  261 

evil  purposes,  and  that  the  same  was  in  similitude  of  an 
obligation  and  security  issued  under  the  authority  of 
the  United  States,  was  not  in  the  "similitude"  within 
the  meaning  of  Section  5430,  since  it  did  not  purport  to 
be  an  obligation  or  security  of  the  United  States,  and  an 
indictment  for  a  violation  of  that  section  did  not  charge 
an  offense  where  it  showed  that  the  instrument  referred 
to  was  such  a  bank  bill. 

In  United  States  vs.  Beebe,  149  Federal,  618,  Judge 
Archibald,  in  passing  upon  a  case  which  was  based  upon 
the  defendant  passing  a  genuine  note,  which  had  thereto- 
fore been  issued  by  a  state  bank,  even  though  at  that 
time  the  note  was  worthless,  and  may  have  had  some 
resemblance,  by  reason  of  its  color,  to  a  United  States 
note,  determined  that  no  offense  against  the  United 
States  had  been  committed.    He  said: 

•'There  must  at  least  be  such  a  resemblance  if  not  simulation,  as 
is  not  only  calculated  to  deceive  a  person  of  ordinary  intelligence,  but 
as  enables  us  to  say  with  some  degree  of  certainty  that  in  disposing 
of  or  using  it,  the  party  charged  was  evidently  trying  to  palm  it  off 
as  a  genuine  obligation  of  the  United  States (citing  and  dis- 
tinguishing cases).  A  broader  ruling  would  make  all  state  bank  issues 
obnoxious;  with  regard  to  which,  it  may  also  be  further  observed 
that  state  currency  is  not  prohibited,  but  is  simply  taxed  out  of  ex- 
istence; notwithstanding  which,  if  anyone  desires  to  put  out  notes 
or  bills  to  pass  as  money,  there  is  nothing  to  prevent  it,  to  say  noth- 
ing of   being   charged    with    counterfeiting,   if   they   happen   to   prove 

worthless The  Federal  Government  is  omy  concerned  with 

protecting  the  people  against  spurious  or  counterfeited  imitations  of 
the  money  to  which  it  gives  currency,  and  to  those  the  Act  is  to  be 
confined.  It  cannot,  indeed,  be  extended  further,  without  entrenching: 
upon  the  reserved  rights  of  the  states,  which  we  must  be  careful  to 
respect,  if  the  dual  form  of  government  which  we  have  is  to  be 
preserved." 

§  84.  Allegation  of  Knowledge. — These  statutes  be- 
ing highly  penal,  and  being  given  life  only  when  there  is 
evil  intent,  make  it  absolutely  necessary  that  the  indict- 
ment allege,  and  the  proof  show,  either  by  circumstantial 
or  direct  evidence,  the  intent  to  defraud  in  making,  forg- 
ing, or  altering,  and  the  knowledge  of  such  falseness, 
before  the  passing  is  unlawful.  The  Circuit  Court  of 
Appeals  for  the  First  Circuit,  in  Gallagher  vs.  United 


262  Federal  Criminal  Law  Procedure. 

States,  144  Federal,  page  87,  held  that  in  a  prosecution 
under  Section  5415,  for  passing  false  or  forged  national 
bank  notes,  knowledge  that  they  were  falsely  made  is  an 
essential  element  of  the  offense,  and  there  must  be  some 
evidence  of  such  knowledge,  circumstantial  or  otherwise, 
aside  from  proof  merely  that  the  spurious  note  was  pass- 
ed.   The  Court  says: 

"The  fact  of  knowledge  may  be  proven  in  a  variety  of  ways.  There 
should,  however,  always  be  some  evidence  tending  to  show  knowledge 
beyond  that  which  results  from  mere  proof  that  the  spurious  bill  was 
passed.  This  rule  results  from  the  nature  of  the  transaction,  because, 
as  is  very  well  known,  spurious  notes  are  so  skilfully  fashioned  that 
one  might  naturally  and  innocently,  as  is  oftentimes  the  case,  receive 
and  pass  them  in  the  whirl  of  business.  In  such  a  case,  intent  and 
guilty  knowledge,  within  the  meaning  of  the  statute,  would  be  absent; 
hence,  the  rule  requiring  something  more  than  evidence  of  the  mere 
passage   of   the   counterfeit   paper." 

It  is  very  true  that  such  evidence  may  be  gathered 
from  a  field  of  circumstances,  the  manner  in  which  the 
payment  was  made,  the  fact  that  a  large  bill  was  offered 
when  the  defendant  had  convenient  change  at  hand;  the 
placing  of  the  money  quietly  and  sliding  it  along  the 
table  or  counter  or  receptacle;  previous  attempts  to 
pass  the  same  coin  or  bill  and  the  rejection  thereof,  or 
the  frequent  passing  of  the  same  sort;  conflicting  state- 
ments, etc.,  etc.  In  United  States  vs.  Carll,  105  United 
States,  611,  the  Supreme  Court  held  that  the  allegation 
knowingly  and  wilfully  was  absolutely  necessary  to  the 
validity  of  the  indictment. 

See.  84a.     Allegation  of  Knowledge  Continued. 

The  case  of  Baender  vs.  U.  S.,  260  F.  832,  does  not 
seem  to  be  the  law  as  it  holds  that  the  intent  may  be 
inferred  from  possession  and  need  not  be  averred  in  the 
indictment.  The  statute  under  consideration,  however, 
had  been  framed  by  Congress  with  the  purpose  of  elimi- 
nating the  words  "with  intent  to  fraudulently  use  the 
same'3'  omitted.  The  possession  of  opium,  from  which 
analogy  the  opinion  proceeds,  was  made  presumptive, 
on  certain  incriminating  facts  but  the  statute  itself  cre- 
ates such  presumption. 


Counterfeiting,  Etc.  263 

Of  course,  one  could  not  be  in  possession  of  a  mold 
without  knowing  it,  while  one  might  be  in  possession  of  a 
counterfeit  and  not  know  it. 

The  allegation  of  knowledge  is  indispensable,  says  the 
Supreme  Court  in  the  Baender  case,  41  Sup.  Ct.  Rep.  271, 
when  the  case  reached  that  court. 

An  indictment  for  having  in  possession  a  falsely  al- 
tered and  spurious  bank  note,  but  containing  no  aver- 
ment that  the  accused  knew  it  to  be  altered  or  spurious 
does  not  charge  an  offense,  Hill  vs.  IT.  S.,  275  F.  187. 

§  85.  Description. — Accurateness  and  preciseness  are 
indispensable  in  the  allegations  of  the  indictment,  when 
it  comes  to  describing  the  false  instrument  passed  or 
made.  In  United  States  vs.  Howell,  64  Federal,  110,  the 
Court  held  that  an  indictment  which  specified  the  par- 
ticular kind  of  obligation,  the  denomination  of  such  ob- 
ligation, the  allegation  that  the  bill  purported  to  be  a 
United  States  note,  and  giving  the  denomination  thereof, 
was  sufficient.  It  is  thought  however,  to  be  the  better 
practice  to  set  out  the  main  features  of  the  front  and  back 
of  the  bill  or  security.  Of  course,  it  is  not  meant  to  say 
that  pictures  or  impossible  delineations,  or  even  difficult 
drawings,  are  to  be  incorporated  in  the  bill,  but  the  large 
numbers  and  wording,  and  identifying  issues  or  series  of 
both  the  front  and  back  of  the  bill  should  be  specifically 
set  forth.  It  is  fatal  variance  for  the  indictment  to  incor- 
rectly describe  the  alleged  conterfeit  bills  in  respect  to 
the  bill  number,  U.  S.  vs.  Mason,  12  Blatch,  (U.  S.)  497. 
If  the  grand  jury  does  not  have  the  bill  it  may  so  allege 
and  describe  as  well  as  the  circumstances  will  permit,  U. 
S.  vs.  Howell,  64  Federal,  110. 

§  86.  Circulating  Bills  of  Expired  Corporation.— Sec- 
tion 174  of  the  New  Code  practically  re-enacts  Section 
5437.  We  have  seen  that  under  ordinary  circumstances, 
unless  there  be  some  fatally  misleading  similarity,  imita- 
tion, or  similitude,  the  passing  of  the  note  of  a  defunct 
bank  is  not  a  Federal  offense.  Section  174  of  the  new- 
Code  inhibits  the  issuing  or  uttering  of  any  note  or  obli- 
gation or  bill  or  check  or  draft  by  any  officer  of  an  ex- 
pired banking  corporation.    The  statute,  of  course,  does 


264  Federal  Criminal  Law  Procedure. 

not  apply  to  one  who  is  not,  or  was  not,  connected  with 
the  institution  during  its  life. 

§  87.  Mutilating  or  Defacing  National  Bank  Note. — 
Section  5189  of  the  old  statutes  has  been  so  changed  as 
to  read  as  follows,  in  Section  176  of  the  new  Code: 

"Whoever  shall  mutilate,  cut,  disfigure,  or  perforate  with  holes, 
or  unite  or  cement  together  or  do  any  other  thing  to  any  bank  bill, 
draft,  note  or  other  evidence  of  debt,  issued  by  any  national  banking 
association,  or  shall  cause  or  procure  the  same  to  be  done,  with  intent 
to  render  such  bank  bill,  draft,  note,  or  other  evidence  of  debt  unfit 
to  be  re-issued  by  said  association,  shall  be  fined  not  more  than  one 
hundred  dollars,  or  imprisoned  not  more  than  six  months,  or  both." 

Under  the  old  statute,  the  person  doing  the  things 
therein  denounced  was  liable  to  a  penalty  of  fifty  dollars, 
recoverable  by  the  association,  but  under  the  new  statute, 
the  act  becomes  an  offense  punishable  by  indictment. 
Under  the  present  section,  as  well  as  under  the  old  stat- 
ute, the  prosecution  must  allege,  and  the  proof  must  show 
that  the  mutilation,  defacing,  etc.,  of  the  note,  bill,  or 
draft,  must  have  been  with  the  intent  to  unfit  the  same  to 
be  re-issued  by  the  association  issuing  it. 

§  88.  Imitating  National  Banking  Notes  with  Print- 
ed Advertisement  Thereon. — Section  175  of  the  new  Code 
takes  the  place  of  Section  5188,  and  reads  as  follows: 

"It  shall  be  unlawful  to  design,  engrave,  print,'  or  in  any  manner 
make  or  execute,  or  to  utter,  issue,  distribute,  circulate,  or  use  any 
business  or  professional  card,  notice,  placard,  circular,  handbill,  or 
advertisement  in  the  likeness  or  similitude  of  any  circulating  note 
or  other  obligation  or  security  of  any  banking  association  organized 
or  acting  under  the  laws  of  the  United  States  which  has  been  or  may 
be  issued  under  any  act  of  Congress,  or  to  write,  print,  or  otherwise 
impress  upon  any  such  note,  obligation,  or  security,  any  business  or 
professional  card,  notice,  or  advertisement,  or  any  notice  or  advertise- 
ment, or  any  matter  or  thing  whatever.  Whoever  shall  violate  any 
provision  of  this  section  shall  be  fined  not  more  than  one  hundred 
dollars,  or   imprisoned  not  more  than  six  months,  or  both." 

The  new  section  becomes  an  offense  wherein  the  pen- 
alties are  recovered  by  the  public  prosecutor  through  in- 
dictment or  information.  Under  the  old  statute,  the  of- 
fender was  liable  to  a  penalty  of  one  hundred  dollars, 


Counterfeiting,  Etc.  265 

recoverable  on  the  suit  of  the  informer,  one-half  of  which 
went  to  the  informer.  Under  the  authority  of  United 
States  vs.  Laescki,  29  Federal,  699,  the  penalty  provided 
by  the  old  section  could  only  be  recovered  by  a  qui  tam 
action  brought  by  an  informer,  and  could  not  be  recov- 
ered by  indictment  at  the  instance  of  the  Government. 

This  section  is  intended  alone  for  the  purpose  of  pro- 
tecting national  bank  notes,  and  does  not,  by  construction 
or  otherwise,  relate  to  the  protection  of  any  other  gov- 
ernment security  or  obligation.  The  statute  really  con- 
tains two  offenses:  the  one  against  making  any  token, 
advertisement,  circular,  etc.,  in  the  likeness  or  similitude 
of  any  circulating  note  or  other  obligation;  and  the  other 
is  directed  against  the  placing  of  any  writing,  printing 
notice,  or  any  other  advertisement  upon  one  of  the  cir- 
culating notes  or  bills  of  the  national  bank  currency. 
''Advertisement"  to  be  read  into  entire  statute,  Kaye  vs. 
U.  S.,  177  Federal,  page  147. 

§  89.  Imitating  United  States  Securities  or  Printing 
Business  Cards  on  Them. — Closely  akin  to  the  section 
above  discussed  is  new  Section  177,  which  reads  as  fol- 
lows: 

"It  shall  not  be  lawful  to  design,  engrave,  print,  or  in  any  manner 
make  or  execute,  or  to  utter,  issue,  distribute,  circulate,  or  use  any 
business  or  professional  card,  notice,  placard,  circular,  hand-bill,  or 
advertisement,  in  the  likeness  or  similitude  of  any  bond,  certificate 
of  indebtedness,  certificate  of  deposit,  coupon,  United  States  note,  or 
other  obligation  or  security  of  the  United  States  which  has  been  or 
may  be  issued  under  or  authorized  by  any  Act  of  Congress  heretofore 
passed  or  which  may  hereafter  be  passed;  or  to  write,  print,  or  other- 
wise impress  upon  any  such  instrument,  obligation,  or  security,  any 
business  or  professional  card,  notice  or  advertisement,  or  any  notice 
or  advertisement  of  any  matter  or  thing  whatever.  Whoever  shall 
violate  any  provision  of  this  section  shall  be  fined  not  more  than  five 
hundred   dollars." 

This  section  takes  the  place  of  old  Section  3708,  and  is 
more  severe  in  penalty.  The  penalty  of  the  old  section 
was  not  recoverable  except  upon  the  suit  of  an  informer, 
and  the  authority  of  the  United  States  vs.  Laescki,  29 


266  Federal  Criminal  Law  Procedure. 

Federal,  699,  governed.  The  new  section  authorizes 
prosecution  by  information  or  indictment,  and  by  the 
government,  instead  of  waiting  for  an  informer  to  move. 
This  statute,  like  the  preceding,  protects  from  deface- 
ment securities,  moneys,  notes,  and  other  obligations  of 
the  United  States,  and  also  prevents  the  making,  for 
advertising  purposes,  of  any  card  or  other  circular  in 
likeness  or  similitude  to  any  such  government  security 
or  obligation. 

§  90.  Notes  of  Less  Than  One  Dollar  Not  to  Be  Is- 
sued.— Section  3583  of  the  Revised  Statutes  of  the  United 
States,  that  has  been  the  law  since  1878,  has  simply  been 
re-enacted  in  Section  178  of  the  new  Code,  which  went 
into  effect  January  1,  1910.  This  section  reads  as  fol- 
lows: 

"No  person  shall  make,  issue,  circulate,  or  pay  out  any  note,  check, 
memorandum,  token,  or  other  obligation  for  a  less  sum  than  one 
dollar,  intended  to  circulate  as  money,  or  to  be  received  or  used  in 
lieu  of  lawful  money  of  the  United  States;  and  every  person  so  of- 
fending shall  be  fined  not  more  than  five  hundred  dollars,  or  im- 
prisoned not  more  than  six  months,  or  both." 

The  old  section  simply  had  the  additional  words,  "at 
the  discretion  of  the  Court. ' '  These  words  were  left  off 
of  the  new  section,  which,  however,  does  not  alter  the 
punishment,  because  the  same  is  in  the  discretion  of  the 
Court  under  the  new  section,  and  he  may  assess  either  or 
both,  as  he  pleases. 

There  seems  to  be  no  doubt,  so  far  as  the  decisions  are 
concerned,  that  a  personal  check  drawn  upon  a  bank  in 
the  settlement  of  an  obligation,  and  not  to  be  circulated 
as  money  is  entirely  lawful,  and  is  not  interfered  with  by 
the  above  section.  So  early  as  1878  the  Supreme  Court 
of  the  United  States,  in  the  case  of  the  United  States 
against  Van  Auken,  96  U.  S.,  page  366,  determined  that 
the  section  was  intended  to  prevent  the  issuance  of  tokens 
which  were  to  circuate  as  money.  That  decision  has 
since  been  followed,  directly  and  persuasively,  in  Hol- 
lister  vs.  Merchant  Institute,  111  U.  S.,  63;  United  States 
vs.  White,  19  Federal,  724;  in  re  Aldrich,  16  Federal,  370; 
United  States  vs.  Rousopulous,  95  Federal,   978;    Zion 


Counterfeiting,  Etc.  267 

Institute,  etc.,  vs.  Hollister,  3  Utah,  301;  Martin  Lumber 
Company  vs.  Johnson,  70  Ark.,  219;   66  S.  W.,  925. 

Of  course  anything  I  have  said  here  does  not  moan  thai 
individuals  or  business  concerns   should  issue,  for   the 
payment  of  help,  any  sort  of  a  token  that  the  employ* 
could  not  immediately  take  to  a  bank  and  receive  the 
cash  thereon. 

The  statute  is  simply  for  the  purpose  of  confining  the 
power  to  issue  money  in  the  Constitutional  channel,  to 
wit,  the  hands  of  Congress,  and  not  to  individuals,  or 
firms,  or  concerns. 

§  91.  Counterfeiting  Gold  or  Silver  Coins  or  Bars.— 
Without  substantial  alteration,  old  Station  5457  and  the 
Amendment  as  contained  in  the  First  Supplement,  128, 
becomes  Section  163  of  the  new  Code,  in  the  following 
words: 

"Whoever  shall  falsely  make,  forge,  or  counterfeit,  or  cause  or 
procure  to  be  falsely  made,  forged,  or  counterfeited,  or  shall  willingly 
aid  or  assist  in  falsely  making,  forging,  or  counterfeiting,  any  coin 
on  bars  in  resemblance  or  similitude  of  the  gold  or  silver  coins  or 
bars  which  have  been,  or  hereafter  may  be  coined  or  stamped  at  the 
mints  and  assay  offices  of  the  United  States,  or  in  resemblance  or 
similitude  of  any  foreign  gold  or  silver  coin,  which  by  laws,  is,  or 
hereafter  may  be,  current  in  the  United  States,  or  are  in  actual  use 
and  circulation  as  money  within  the  United  States;  or  whoever  shall 
pass,  utter,  publish,  or  sell,  or  attempt  to  pass,  utter,  publish,  or  sell, 
or  bring  into  any  foreign  place,  knowing  the  same  to  be  false,  forged, 
or  counterfeit,  with  intent  to  defraud  any  body  politic  or  corporate,  or 
any  person  or  persons  whomsoever,  or  shall  have  in  his  possession  any 
such  false,  forged,  or  counterfeited  coin  or  bars,  knowing  the  same  to 
be  false,  forged,  or  counterfeited,  with  intent  to  defraud  anybody 
politic  or  corporate,  or  any  person  or  persons  whosoever,  shall  be 
fined  not  more  than  five  thousand  dollars  and  imprisoned  not  more 
than  ten  years." 

The  same  care  in  the  drafting  of  indictments,  in  the 
alleging  of  the  fraudulent  intent,  is  necessary,  as  in 
prosecutions  for  passing  other  forged  instruments.  When 
the  indictment  is  for  forging  or  making,  the  allegation  of 
knowledge  is  unnecessary,  because  the  law  presumes  thai 
one  who  makes  has  knowledge  of  its  falseness.  U.  S.  vs. 
Otney,  31  Federal,  68;  U.  S.  vs.  Bicksler,  1  Mackey,  341; 
U.  S.  vs.  Peters,  2  Abb.  (U.  S.),  494;   U.  S.  vs.  Russell, 


268  Federal  Criminal  Law  Procedure. 

22  Federal,  390.  When,  however,  the  charge  is  for  pass- 
ing, knowledge  must  be  alleged  and  shown.  Of  course, 
such  knowledge  may  be  shown  by  either  direct  or  cir- 
cumstantial evidence,  but  there  must  be  something  from 
which  the  jury  can  conclude,  beyond  a  reasonable  doubt, 
that  the  person  passing  had  knowledge  that  the  coin  was 
spurious;   otherwise,  the  act  is  entirely  innocent. 

Sec.  91a.  Counterfeit  Gold  and  Silver  Coins  and  Bars 
Continued. 

For  minor  coins  see  Sec.  93.  It  is  not  necessary  to 
allege  ''not  a  minor  coin,"  Linnigen  vs.  Morgan,  241  F. 
645. 

§  92.  Resemblance  or  Similitude. — The  same  difficul- 
ties have  been  encountered  and  overcome  by  the  Courts 
under  the  coin  statutes  as  were  discussed  under  Sections 
148  and  149,  supra.  A  coin  or  bar  would  not  be  called 
counterfeit,  within  the  meaning  of  a  criminal  statute, 
unless  there  appeared  to  be  some  resemblance  or  simili- 
tude and  an  effort  to  make  such  resemblance  and  simili- 
tude. It  would  seem  to  be  the  better  public  policy  to 
accept  the  test  prescribed  in  United  States  vs.  Hargrave, 
26  Federal  Cases  No.  15306,  where  it  was  said  that  it 
was  not  a  question  whether  the  spurious  coin  would  de- 
ceive a  person  of  ordinary  skill  and  caution,  but  whether 
it  was  capable  and  designed  to  be  used  for  deceiving  the 
incautious  and  unskillful,  to  test  which  seems  to  be  more 
broadly  determined  in  the  following  words,  to  wit:  "If 
the  spurious  article  has  not  a  resemblance  strong  enough 
to  deceive  persons  exercising  ordinary  caution,  then  the 
passing  is  not  a  crime,"  as  cited  in  and  supported  by 
Second  Volume  Federal  Statutes  Annotated,  page  311; 
United  States  vs.  Aylward,  24  Federal  Cases  No.  14484. 
A  very  fair  test  is  that  prescribed  in  United  States  vs. 
Hopkins,  26  Federal,  443,  where  the  Court  said: 

"It  is  not  necessary  that  the  resemblance  should  be  exact  in  all 
respects.  The  resemblance  is  sufficient  if  the  coins  are  so  far  alike 
that  the  counterfeit  coin  is  calculated  to  deceive  a  person  exercising 
ordinary  caution  and  observation  in  the  usual  transaction  of  business. 


Counterfeiting,  Etc.  269 

though  the   counterfeit  would  not  deceive  a  person  who  was  expert, 
or  has  particular  experience  in  such  matters." 

See  also  U.  S.  vs.  Abrams,  18  Federal,  823;  U.  S.  vs. 
Kussell,  22  Federal,  390.  In  United  States  vs.  Lissner,  12 
Federal,  840,  the  Court  held  that  the  removal  of  an  ap- 
preciable amount  of  the  silver  from  a  coin,  which  was 
replaced  with  an  inferior  metal,  amounted  to  counterfeit- 
ing. 

In  United  States  vs.  Owens,  37  Federal,  112,  District 
Judge  Hammond  held  that  in  a  prosecution  under  a  gen- 
eral statute  of  the  sort  under  discussion,  it  was  not  essen- 
tial for  the  indictment  to  aver  that  the  alleged  counter- 
feits were  in  the  likeness  and  similitude  of  genuine  notes 
(coins)  authorized  by  the  act  of  Congress  under  which 
they  purported  to  have  been  issued.  Such  an  allegation 
may  be  necessary  under  a  special  statute,  but  in  provid- 
ing a  general  law  for  forgery,  such  specific  allegation  is 
unnecessary.  The  words  "false,  forged,  and  counterfeited 
obligation  of  the  United  States"  are  sufficient  to  imply 
that  the  alleged  counterfeit  purports  to  be  a  genuine 
obligation  of  the  United  States,  and  are  a  sufficient  aver- 
ment that  there  is,  or  was,  outstanding,  authorized  by 
law,  genuine  obligations  of  the  sort  the  alleged  imitation 
was  intended  to  be  a  forgery  or  counterfeit. 

An  indictment  under  this  section  must  aver  the  inten- 
tion to  defraud,  but  it  need  not  specify  the  person,  if,  as 
a  matter  of  fact,  the  grand  jury  does  not  know  in  particu- 
lar, and  the  indictment  may,  therefore,  allege  that  the 
forging  and  having  in  possession  was  for  the  purpose  of 
defrauding  persons  to  the  grand  jurors  unknown,  if  such 
be  the  facts.  Of  course,  in  a  count  for  passing  or  utter- 
ing, the  indictment  should  allege  the  intent  to  defraud 
the  person  upon  whom  the  coin  was  passed.  Whether  for 
having  in  possession  or  for  passing,  there  must  be,  as 
above  stated,  an  allegation  of  knowledge  with  reference 
to  its  vice.    U.  S.  vs.  Bejandio,  1  Woods,  294. 

§  92a.  Resemblance  and  Similitude,  Continued.— An 
unsigned  national  bank  note  contains  the  elements  of 
similitude  and  resemblance  required  by  the  statute.  Wig- 


270  Federal  Criminal  Law  Procedure. 

gins  vs.  U.  S.,  214  Federal,  970.  Similitude  an-1  resem- 
blance is  a  jury  question  and  must  be  submitted  by  the 
Court  to  the  jury.  U.  S.  vs.  Weber,  210  Federal,"  973. 
See  Sections  78  and  78a.  The  meaning  of  similitude  is 
that  the  counterfeit  must  resemble  the  genuine.  Whether 
it  does  is  a  question  of  fact  for  the  jury,  but  the  Court 
will  instruct  them  that  the  likeness  need  not  be  perfect. 
The  rule  is  sometimes  stated  to  be  that  it  will  suffice  if 
the  counterfeit  looks  so  much  like  the  original  as  to  be 
capable  of  deceiving  a  person  using  ordinary  caution. 
2nd  Vol.  Bishop's  New  Criminal  Law,  Section  291,  page 
167.  There  need  be  no  impression  on  the  counterfeit, 
says  one  authority  for  it  may  be  in  the  likeness  of  the 
worn  coin.  2nd  Vol.  Bishop's  New  Criminal  Law,  Section 
291,   page   167. 

§  92b.  Advertisements  Like  Coins,  Etc. — Section  171 
provides:  "Whoever,  within  the  United  States  or  any 
place  subject  to  the  jurisdiction  thereof,  shall  make,  or 
cause  or  procure  to  be  made,  or  shall  bring  therein,  from 
any  foreign  country,  or  shall  have  in  possession  with  in- 
tent to  sell,  give  away,  or  in  any  other  manner  use  the 
same,  any  business  or  professional  card,  notice,  placard, 
token,  device,  print,  or  impression,  or  any  other  thing 
whatsoever,  in  the  likeness  or  similitude  as  to  design, 
color,  or  the  inscription  thereon,  of  any  of  the  coins  of 
the  United  States  or  of  any  foreign  country  that  have 
been  or  hereafter  may  be  issued  as  money,  either  under 
the  authority  of  the  United  States  or  under  the  authority 
of  any  foreign  government,  shall  be  fined  not  more  than 
one  hundred  dollars.  But  nothing  in  this  section  shall 
be  construed  to  forbid  or  prevent  the  printing  and  pub- 
lishing of  illustrations  of  coins  and  medals,  or  the  making 
of  the  necessary  plates  for  the  same,  to  be  used  in  illus- 
trating numismatic  and  historical  books  and  journals  and 
the  circulars  or  legitimate  publishers  and  dealers  in  the 
same."    Act  February  15,  1912. 

§  93.  Counterfeiting  Minor  Coins. — Section  5458  of 
the  old  statutes  is  displaced  by  Section  164  of  the  new 
Code,  in  the  following  terms: 


Counterfeiting,  Etc.  271 

"Whoever  shall  falsely  make,  forge,  or  counterfeit,  or  cause  or 
procure  to  be  falsely  made,  forged,  or  counterfeited,  or  shall  willingly 
aid  or  assist  in  falsely  making,  forging,  or  counterfeiting  any  coin 
in  the  resemblance  of  similitude  of  any  of  the  minor  coins  which  have 
been,  or  hereafter  may  be,  coined  at  the  mints  of  the  United  Stati 
or  whoever  shall  pass,  utter,  publish,  or  sell,  or  bring  into  the  United 
States  or  any  place  subect  to  the  jurisdiction  thereof  from  any  foreign 
place,  or  have  in  his  possession  any  such  false,  forged,  or  counter- 
feited coin,  with  intent  to  defraud  any  person  whomsoever,  shall 
be  fined  not  more  than  one  thousand  dollars  and  imprisoned  not  more 
than  three  years." 

This  statute,  it  will  be  noticed,  includes  all  of  the 
elements  and  ingredients,  both  with  reference  to  allega- 
tion and  proof  that  have  been  treated  under  Sections  163, 
148  and  149.  It  must  be  understood  that  the  minor  coins 
referred  to  in  the  section  are  those  defined  and  created 
by  Section  3515  of  the  old  statute,  which  were  a  five-cent 
piece,  a  three-cent  piece,  and  a  one-cent  piece.  An  in- 
dictment, therefore,  which  charged  the  forging  and  coun- 
terfeiting of  minor  silver  coinage  is  contradictory,  and 
alleges  no  offense.    U.  S.  vs.  Bicksler,  1  Mackey,  341. 

§  94.  Making  or  Uttering  Coins  in  the  Resemblance 
of  Money. — New  Section  167,  in  the  following  words: 

"Whoever,  except  as  authorized  by  law,  shall  make  or  cause  to  be 
made,  or  shall  utter  or  pass,  or  attempt  to  utter  or  pass,  any  coins 
of  gold  or  silver  or  other  metal,  or  alloys  of  metals,  intended  for  the 
use  and  purpose  of  current  money,  whether  in  the  resemblance  of 
coins  of  the  United  States  or  of  foreign  countries,  or  of  original  design, 
shall  be  fined  not  more  than  three  thousand  dollars,  or  imprisoned 
not  more  than  five  years,  or  both." 

displaces  old  Section  5461.  Sections  163  and  164,  above 
mentioned,  related  alone  to  gold  and  silver  coins  or  bars. 
and  the  minor  coinage  while  Section  167  is  what  may  be 
termed  a  blanket  statute,  that  denounces  as  unlawful, 
any  making,  uttering,  or  passing  etc.,  of  any  coin, 
whether  of  gold  or  silver  or  other  metal,  intended  for  tin1 
use  and  purpose  of  current  money,  and  this  whether  the 
design  be  in  imitation  of  any  United  States  obligation, 
or  whether  it  be  in  original  design. 

This  statute,  if  enforced,  is  capable  of  being  used  for 
much  good,  in  the  stamping  out  of  the  practice  of  certain 


272  Federal  Criminal  Law  Procedure. 

large  industries,  that  pay  their  labor,  and  thus  enforce  a 
practical  serfdom,  with  checks  or  due  bills  or  trade  vouch- 
ers which  pass  as  current  money  in  the  camp  or  town 
that  such  industry  owns  or  dominates.  The  fact  part  of 
the  statute  is  found  in  the  words  "intended  for  the  use 
and  purpose  of  current  money,"  and,  of  course,  this  can 
be  made  to  appear  either  by  direct  or  circumstantial  tes- 
timony. The  jury  should  be  instructed  that  the  tokens 
were  intended  for  the  use  and  purpose  expressed  in  the 
statute,  and  they  should  so  find,  beyond  a  reasonable 
doubt,  before  a  conviction  could  be  had. 

§  95.  Making  or  Issuing  Devices  of  Minor  Coins. — For 
the  protection  of  the  minor  coinage,  as  defined  by  old 
statute  3515,  as  hereinbefore  noticed,  the  old  section  5462 
becomes  Section  168  in  the  new  Code,  which  reads  as  fol- 
lows: 

"Whoever,  not  lawfully  authorized,  shall  make,  issue,  or  pass,  or 
cause  to  be  made,  issued,  or  passed,  any  coin,  card,  token,  or  device 
in  metal,  or  its  compounds,  which  may  be  intended  to  be  used  as  money 
for  any  one-cent,  two-cent,  three-cent,  or  five-cent  piece,  now  or  here- 
after authorized  by  law,  or  for  coins  of  equal  value,  shall  be  fined  not 
more  than  one  thousand  dollars,  and  imprisoned  not  more  than  five 
years." 

In  United  States  vs.  Roussopulous,  95  Federal,  977,  the 
Court  held  that  circular  metal  tokens,  which,  though  of 
similar  color,  differed  in  size  and  wholly  undesigned  from 
any  coin  of  the  United  States,  and  are  only  from  one-sixth 
to  one-fifteenth  the  weight  of  the  coin  the  nearest  the 
same  size,  and  which  do  not  purport  to  be  money  or  ob- 
ligations to  pay  money,  but  contain  the  names  of  business 
concerns,  with  the  statement  that  they  are  good  for  a 
certain  value  in  merchandise,  are  not  tokens  in  the  like- 
ness and  similitude  of  coins  of  the  United  States,  nor 
intended  to  circulate  as  money,  and  to  be  received  and 
used  in  lieu  of  lawful  money,  within  the  prohibition  of 
Section  5462,  Section  3583,  or  the  Act  of  February  10, 
1891. 

It  will  be  borne  in  mind,  however,  that  Section  168  is 
not  nearly  so  broad  as  Section  167.  It  is  true  of  168,  as 
it  was  of  167,  that  there  must  be  an  intent  to  use  the 


Counterfeiting,  Etc.  273 

token  as  money,  which  must  be  charged,  proven,  and 
found,  as  other  essential  facts  in  criminal  cases. 

§  96.  Other  Statutes  Relating  to  the  Coinage.— Sec- 
tion 165  takes  the  place  of  the  old  Section  5459,  as  amend- 
ed by  the  Act  shown  at  page  579  of  the  Second  Supple- 
ment. This  section  punishes  the  fraudulent  mutilation 
or  lightening  of  the  coinage.  There  seems  to  be  nothing 
in  the  old  law  or  in  the  new  law  that  inhibits  the  bona 
fide  use  of  a  coin.  If,  however,  there  be  a  mutilation, 
for  the  purpose  of  defrauding  some  person,  the  statute  is 
so  broad  as  to  include  every  possible  method.  It  was 
said  in  United  States  vs.  Lissner,  12  Federal,  840,  that 
where  one  punched  a  hole  with  a  sharp  instrument 
through  a  coin,  leaving  all  the  silver  in  the  coin,  though 
crowding  it  into  different  shape,  he  committed  no  offense. 

Section  166  relates  to  the  debasement  of  the  coinage  by 
officers  of  the  mint,  and  is  a  practical  re-enactment  of  old 
Section  150.  Section  169  relates  to  counterfeiting,  etc.,  of 
the  dies  for  coins  of  the  United  States,  and  incorporates 
all  the  features  of  the  Act  shown  in  First  Supplement, 
page  889. 

Section  170  denounced  the  counterfeiting  of  dies  for 
foreign  coins,  and  is  based  upon  the  Act  shown  in  the 
First  Supplement,  page  890. 

Section  171  is  an  incorporation  of  the  Act  shown  in 
First  Supplement,  page  890,  and  the  Act  of  the  Third  of 
March,  1903,  page  1223  of  the  32  St.  Large,  and  treats  of 
the  making,  importing,  or  having  in  possession,  tokens, 
prints,  etc.,  similar  to  United  States  or  foreign  coins. 

§  96a.  Counterfeit  Dies,  Hubs,  Molds,  Etc.— The  Act 
of  February  10,  1891,  Chap.  127,  26  Stats.  L.,  742,  which 
makes  it  an  offense  to  make  any  die,  hub  or  mold  in  the 
likeness  of  any  die,  hub  or  mold  designed  for  the  coining 
of  any  of  the  coins  of  the  United  States  "without  authori- 
ty from  the  Secretary  of  the  Treasury,"  makes  it  neces- 
sary that  the  indictment  must  aver  the  want  of  such  au- 
thority and  a  general  averment  that  the  die,  hub  or  mold 
was  unlawfully  and  feloniously  made  by  defendant  is 
not  sufficient.    Wroclawsky  vs.  IT.  S.,  183  Federal,  312. 

Sections  169  and  170  of  the  Criminal  Code  do  not  con- 
tain the  words  "Secretary  of  the  Treasury"  but  do  con- 

18 


274  Federal  Criminal  Law  Procedure. 

tain  the  words  "without  lawful  authority."  It  would 
appeal  that  an  indictment  without  the  words  "without 
lawful  authority"  would  be  generally  demurrable  and 
yet  the  proof  of  such  an  allegation  could  only  be  made 
by  the  testimony  of  the  Treasury  Department  of  the 
United  States,  and  from  the  lips  of  such  authority  in  that 
department  as  would  be  able  to  speak  with  reference  to 
the  custody  of  all  of  such  property  as  belonged  to  the 
Government.  It  might  be  that  this  proof  could  be  made 
by  a  duly  commissioned  secret  service  officer  who  would 
be  sufficiently  familiar  with  the  dies  and  hubs  and  molds 
of  the  United  States,  but  it  is  hardly  seen  how  he  could 
qualify  and  how  his  testimony  would  meet  the  measure 
of  these  two  sections. 

Sec.  96b.     Die  and  Mold. 

It  is  immaterial  that  the  word  die  is  used  instead  of 
mold,  Cole  vs.  U.  S.,  269  F.  250. 

§  97.  Counterfeit  Obligations,  Etc.,  to  be  Forfeited. — 
By  the  terms  of  Section  172,  which  reads  as  follows: 

"All  counterfeits  of  any  obligation  or  other  security  of  the  United 
States  or  of  any  foreign  government,  and  all  material  or  apparatus 
fitted  or  intended  to  be  used,  or  that  shall  have  been  used,  in  the 
making  of  any  such  counterfeit  obligation  or  other  security  or  coins 
hereinbefore  mentioned,  that  shall  be  found  in  the  possession  of  any 
person  without  authority  from  the  Secretary  of  the  Treasury  or  other 
proper  officer  to  have  the  same,  shall  be  taken  possession  of  by  any  au- 
thorized agent  of  the  Treasury  Department,  and  forfeited  to  the  United 
States,  and  disposed  of  in  any  manner  the  Secretary  of  the  Treasury 
may  direct.  Whoever  having  the  custody  or  control  of  any  such 
counterfeits,  material,  or  apparatus,  shall  fail  or  refuse  to  surrender 
possession  thereof  upon  request  by  any  such  authorized  agent  of  the 
Treasury  Department,  shall  be  fined  not  more  than  one  hundred 
dollars,  or  imprisoned  not  more  than  one  year,  or  both." 

any  counterfeit  obligation,  security,  coin,  or  other  ma- 
terial, is  to  be  forfeited.  This  section  is  an  enlargement 
of  the  Act  shown  in  the  First  Supplement,  page  890,  in 
that  it  adds  a  penalty.  Whoever,  having  custody  of  the 
material,  refuses  to  surrender,  upon  request,  is  liable  to 
one  hundred  dollars  fine,  or  imprisonment  for  not  more 
than  one  year,  or  both. 


Counterfeiting,  Etc. 


275 


§  98.  Search  Warrant.— In  aid  of  the  above  statute. 
and  particularly  for  the  suppression  of  all  sorts  of  coun- 
terfeiting, we  have  Section  173  of  the  new  Code,  in  the 
following  words: 

"The  several  judges  of  courts  established  under  the  laws  of  the 
United  States  and  United  States  commissioners  may,  upon  proper 
oath  or  affirmation,  within  their  respective  jurisdictions,  issue  a 
search  warrant  authorizing  any  marshal  of  the  United  States,  or  any 
other  person  specially  mentioned  in  such  warrant,  to  enter  any  house, 
store,  building,  boat,  or  other  place  named  in  such  warrant,  in  which 
there  shall  appear  probable  cause  for  believing  that  the  manufacture 
of  counterfeit  money,  or  the  concealment  of  counterfeit  money,  or  the 
manufacture  or  concealment  of  counterfeit  obligations  or  coins  of  the 
United  States  or  of  any  foreign  government,  or  the  manufacture  or 
concealment  of  dies,  hubs,  molds,  plates,  or  other  things  fitted  or  in- 
tended to  be  used  for  the  manufacture  of  counterfeit  money,  coins,  or 
obligations  of  the  United  States  or  of  any  foreign  government,  or  of 
any  bank  doing  businesss  under  the  authority  of  the  United  States, 
or  of  any  State  or  Territory  thereof,  or  any  bank  doing  business 
under  the  authority  of  any  foreign  government,  or  of  any  political 
division  of  any  foreign  government,  is  being  carried  on  or  practiced, 
and  there  search  for  any  such  counterfeit  money,  coins,  dies,  hubs, 
molds,  plates,  and  other  things,  and  for  any  such  obligations,  and  if 
any  such  be  found,  to  seize  and  secure  the  same,  and  to  make  return 
thereof  to  the  proper  authority;  and  all  such  counterfeit  money, 
coins,  dies,  hubs,  molds,  plates,  and  other  things,  and  all  such  counter- 
feit obligations  so  seized  shall  be  forfeited  to  the  United  States.'' 

The  only  difference  between  the  new  section  and  the 
old  section  as  shown  in  First  Supplement,  page  890,  is 
the  leaving  out  of  the  provision  that  a  search  warrant 
may  be  served  or  acted  upon  only  in  the  day-time.  Un- 
der the  new  law,  officers  may  act  under  the  search  war- 
rant, when  issued  as  therein  provided,  at  any  time,  un- 
less, perchance,  the  Constitutional  prohibition  against 
unreasonable  searches  and  seizures  may  be  read  into  the 
statute,  and  it  doubtless  is. 

Sec.  98a.     Search  Warrant  Continued. 

There  is  no  general  power  reposed  in  a  court  to  issue 
a  search  warrant,  IT.  S.  vs.  Jones,  230  F.  263. 


CHAPTER  VI. 

OFFENSES  AGAINST  PUBLIC  JUSTICE. 

99.     Perjury. 

100.  Form   of  Oath   Immaterial. 

101.  Competent  Tribunal,  Officer,  etc 
101a.  Oath  Must  be  Authorized. 

102.  Illustrations  of  Successfully  Laid  Perjury. 
102a.  Additional  Perjury  Cases. 

103.  Materiality  and  Willfulness. 
103a.  Materiality  Continued. 

104.  Sufficiency  of  Indictment. 

105.  Proof. 

105a.  Proof  Continued. 
105b.  Other  Cases. 

106.  Subornation  of  Perjury. 
106a.  Attorney  Suborning. 
106b.  Elements  of  Surbornation. 

107.  Stealing  or  Altering  Process,  Procuring  False  Play,  etc. 

108.  Obstructing  Process  or  Assaulting  an  Officer,  etc. 

108a.  Advice  to  Avoid  Service  of  Process  May  Be  Obstruction. 
108b.  Obstructing   Process   Continued. 

109.  Destroying  or  Stealing,  etc.,  Public  Records. 

110.  Destroying  Records  by  Officer  in  Charge. 

111.  Forging  Signature  of  Judge,  etc. 

112.  Intimidation  or  Corruption  of  Witness  or  Grand  or  Petit  Juror 
or  Officer. 

112a.  Illustrations  of  Intimidation. 

113.  Conspiring  to  Intimidate  Party,  Witness  or  Jury. 

114.  Attempt  to  Influence  Jury. 

115.  Allowing  Prisoner  to  Escape. 
115a.  Applies  to  State  Jailer. 

116.  Rescuing,   etc.,   Prisoner,   etc.;     Concealing,   etc.,   Prisoner   for 
Whom  Warrant  has  been  Issued. 

117.  Rescue  at  Execution;    Rescue  of  Prisoner  and  Rescue  of  Body 

of  Executed  Offender. 

118.  Extortion  by  Internal  Revenue  Informers. 

119.  Misprision  of  Felony 

120.  Bribery. 

121.  Bribery  of  a  Judge  or  Judicial  Officer. 

122.  Judge  or  Judicial  Officer  Accepting  Bribe,  etc. 

123.  Juror,  Referee,  Master,  United  States  Commissioner  or  Judicial 

Officer,  etc.,  Accepting  Bribe. 
123a.  Indictment — Who  is  Officer. 

124.  Witness  Accepting  Bribe. 

125.  Members  of  Congress  Accepting  Bribes,  etc. 

(276) 


Offexses  Against  Public  Justice.  277 

§  99.  Perjury.— Section  125  of  the  new  Code,  which 
contains  5392  of  the  old  statutes  without  changing  the 
same,  reads  as  follows: 

"Whoever,  having  taken  an  oath  before  a  competent  tribunal,  officer, 
or  person,  in  any  case  in  which  a  law  of  the  United  States  author- 
izes an  oath  to  be  administered,  that  he  will  testify,  declare,  depose, 
or  certify  truly,  or  that  any  written  testimony,  declaration,  desposi- 
cion,  or  certificate  by  him  subscribed,  is  true,  shall  wilfully  and  coii 
trary  to  such  oath  state  or  subscribe  any  material  matter  which  he 
does  not  believe  to  be  true,  is  guilty  of  perjury,  and  shall  be  fined  not 
more  than  two  thousand  dollars,  and  imprisoned  not  more  than  five 
years." 

Common  law  perjury  was  practically  the  same  as  this 
statutory  offense.  Perjury,  at  Common  Law,  was  the 
wilful  and  corrupt  giving,  upon  a  lawful  oath,  or  in  any 
form  allowed  by  law  to  be  substituted  for  an  oath  in  a 
judicial  proceeding  or  course  of  justice,  of  false  testi- 
mony material  to  the  issue  or  matter  of  inquiry. 

§  100.  Form  of  Oath  Immaterial. — An  oath,  as  under- 
stood in  prosecutions  under  this  statute,  is  one's  solemn 
asseveration,  uttered  in  an  appeal  to  the  Supreme  Being, 
under  the  sanction  of  his  religion,  that  a  thing  stated  or 
to  be  stated  by  him  is  true,  made  to  a  civil  officer  author- 
ized to  administer  or  receive  it.  It  must,  therefore,  be  a 
lawful  one;  that  is,  it  must  be  legally  administered,  by 
an  officer  duly  authorized,  but  the  form  is  immaterial, 
provided  the  witness  professes  it  to  be  binding  on  him. 
When  a  witness  comes  to  be  sworn,  it  is  to  be  assumed 
that  he  has  settled  with  himself  in  what  way  he  shall  be 
sworn,  and  he  should  make  it  known  to  the  Court,  and 
should  be  sworn  with  uplifted  hand,  or  by  any  other  un- 
usual mode,  though  not  conscientiously  opposed  to  swear- 
ing on  the  Gospel,  and  depose  falsely,  he  subjects  himself 
to  prosecution  for  perjury.  See  Clark,  Bishop,  and  Whar- 
ton on  Perjury.  In  United  States  vs.  Mallard.  10  Fed- 
eral, 151,  the  Court  held  that  the  affiant,  being  unable  to 
write,  the  Commissioner  reduced  his  statement  to  writing, 
ending  with  the  jurat,  "Sworn  to  before  me,"  and  said 
to  him,  "If  you  swear  to  this  statement,  put  your  mark- 
here. "  The  affiant  put  his  mark.  This  was  held  to  be  an 
oath.    In  United  States  vs.  Baer,  6  Federal,  42,  the  evi- 


278  Federal  Criminal  Law  Procedure. 

dence  of  a  notary  public  showed  that  he  had  used  a  form 
substantially  as  that  required  by  the  local  state  statute, 
in  swearing  a  witness,  and  the  Court  held  that  the  oath 
was  sufficient  to  sustain  a  verdict  of  guilty  of  perjury. 

§  101.  Competent  Tribunal,  Officers,  Etc. — Having 
been  satisfied  that  the  person  took  an  oath  in  some  form 
recognized  as  religiously  binding,  the  next  question  un- 
der the  statute  is  whether  such  an  oath  was  taken  before 
a  competent  tribunal,  officer,  or  person,  in  a  case  in  which 
a  law  of  the  United  States  authorized  an  oath  to  be  ad- 
ministered. Under  the  Common  Law,  the  false  testimony 
must  be  in  a  judicial  proceeding,  or  in  the  course  of  jus- 
tice; but  the  statute  under  consideration  includes  much 
more  than  the  Courthouse  testimony  and  oath.  It  does 
not,  however,  include  every  affidavit  or  declaration.  In 
United  States  vs.  Babcock,  4  McLean,  113,  it  was  held 
that  an  oath  administered  to  a  witness  by  the  Clerk  of 
the  Circuit  Court,  as  to  the  distance  from  the  Court  to 
his  home,  taken  by  the  witness  to  support  his  claim  for 
mileage,  was  not  taken  under  any  law  of  the  United 
States,  and,  therefore,  a  prosecution  for  perjury  could  not 
be  sustained.  In  United  States  vs.  Maid,  116  Federal, 
650,  the  Court  held  that  an  affidavit  of  the  non-mineral 
character  of  the  land,  made  in  support  of  a  homestead 
entry,  although  a  regulation  of  the  land  office  required 
such  an  affidavit  to  be  made  in  certain  states,  since  it  was 
not  required  by  Revised  Statutes  2290,  which  prescribed 
the  contents  of  a  homestead  affidavit,  would  not  sustain 
a  prosecution  for  perjury. 

In  United  States  vs.  Howard,  37  Federal,  the  facts 
showed  that  the  defendant  entered  a  homestead  claim, 
and  on  application  to  commute  his  entry  to  a  cash  entry, 
he  made  affidavit  that  he  had  actually  moved  on  the  land 
in  December,  etc.,  taking  his  oath  before  a  Judge  of  Pro- 
bate. The  statute  did  not  authorize  a  Judge  of  Probate 
to  administer  such  an  oath;  and  the  Court,  upon  demur- 
rer, held  the  indictment  to  be  fatally  defective,  upon  the 
proposition  that  the  defendant  had  not  taken  his  oath 
before  some  competent  tribunal,  officer,  or  person.  In 
United  States  vs.  Manion,  44  Federal,  page  800,  the  Court 
held  that  perjury  cannot  be  assigned  upon  affidavit  made 


Offenses  Against  Public  Justice. 

before  a  notary  public,  by  a  person  in  support  of  his 
claim  to  a  preference  right  to  purchase  coal  land  under 
certain  sections  of  the  Revised  Statutes,  because  notaries 
public  are  not  authorized  by  any  law  of  the  United  States 
to  administer  oaths  to  affidavits  required  by  the  rules  and 
regulations  of  the  general  land  office,  the  regulations 
showing  that  persons  desiring  to  make  affidavits  for  coal 
lands  must  do  so  before  a  Register  or  Receiver  of  t lie  Land 
office.  Judge  Paul,  in  United  States  vs.  Law,  50  Federal, 
915,  held  that  Section  778  of  the  Revised  Statute,  which 
authorized  notaries  public  to  administer  oaths  in  all  ea 
in  which  Justices  of  the  Peace  had  power  to  administer 
them,  gave  no  power  to  administer  an  oath  in  an  investi- 
gation by  the  Post-office  Department,  as  to  the  alleged 
loss  of  a  registered  letter,  for  there  was  no  statute  which 
gave  Justices  such  power,  and,  therefore,  no  indictment 
for  perjury  could  be  based  upon  false  statements  in  an 
affidavit  made  before  a  notary  public  in  such  an  investi- 
gation. Before  the  Act  of  February  26,  1881,  a  notary 
public  had  no  authority  to  administer  oaths  to  officers 
of  national  banks  for  the  verification  of  their  reports  to 
the  Comptroller,  and  false  statements  in  such  reports, 
where  verification  was  had  before  a  notary  public,  would 
not  have  sustained  prosecution  for  perjury.  United 
States  vs.  Curtis,  107  U.  S.,  671.  An  oath  taken  before  a 
Commissioner  of  the  Circuit  Court  in  taking  bail,  where 
the  laws  of  the  State  do  not  authorize  the  State  officers 
mentioned  in  the  statute  to  administer  oaths  for  similar 
purposes,  will  not  sustain  a  prosecution  for  perjury. 
United  States  vs.  Garcelon,  82  Federal,  611.  Under  the 
authority  of  United  States  vs.  Lamson,  165  Federal,  page 
80,  an  affidavit  under  Section  6  of  the  Oleomargarine  Act. 
which  requires  wholesale  dealers  to  keep  such  books  and 
render  such  returns  as  the  Commissioner  of  Internal 
Revenue,  may,  by  regulation,  require,  under  prescribed 
penalties  for  its  violation,  and  the  regulation  thereunder 
made  requiring  an  oath  to  the  returns,  does  not  have  the 
force  of  law  in  such  sense  that  a  false  oath  to  a  return 
subjects  the  maker  to  prosecution  for  perjury,  and  an 
indictment  so  laid  was  quashed  by  Judge  Brown. 


280  Federal  Criminal  Law  Procedure. 

§  101a.  Oath  Must  Be  Authorized. — A  perjury  cannot 
be  assigned  upon  an  oath  that  was  not  authorized  or  re- 
quired by  law.  In  the  case  of  U.  S.  vs.  George,  228  U.  S., 
page  14,  the  Supreme  Court  of  the  United  States  affirmed 
the  judgment  of  the  lower  Court,  wherein  it  was  held 
that  an  affidavit  made  by  a  homestead  claimant  in  pur- 
suance of  a  regulation  promulgated  by  the  Secretary  of 
the  Interior  and  by  the  officers  of  the  Land  Department, 
but  which  was  not  authorized  or  demanded  by  any  law 
of  the  United  States,  could  not  be  the  predicate  for  the 
successful  assigning  of  perjury.  The  Court  observed 
that  there  was  a  distinction  between  legislative  and  ad- 
ministrative functions  and  that  under  a  statutory  power 
to  make  regulations  an  administrative  officer  could  not 
abridge  or  enlarge  the  conditions  imposed  by  statute. 

The  bankruptcy  statute  authorizes  the  making  of 
schedules  under  oath  and  the  examination  of  the  bank- 
rupt and  various  other  under-oath  proceedings,  and  per- 
jury committed  in  any  of  such  examinations  or  disclosures 
is  venal.  Daniels  vs.  U.  S.,  196  Federal,  459.  Ulmer  vs. 
U.  S.,  219  Federal,  641;  U.  S.  vs.  Kosenstein,  211  Federal, 
738;  oaths  made  in  the  various  steps  of  a  patent  applica- 
tion are  corrupt.  Patterson  vs.  U.  S.,  202  Federal,  208; 
a  notary  public  is  a  competent  officer  or  tribunal  and 
authorized  to  administer  oaths.  Patterson  vs.  U.  S.,  202 
Federal,  708.  But  the  affidavit  required  under  Section 
4886  by  an  inventor  may  not  be  enlarged  by  the  Com- 
missioner of  Patents  so  as  to  make  an  assignment  of 
perjury  possible  under  such  enlarged  order.  Patterson 
vs.  U.  S.,  181  Federal,  970.  An  importer  is  guilty  of 
perjury  in  making  an  affidavit  which  was  untrue  with 
reference  to  concealed  or  suppressed  articles  which  were 
subject  to  duties,  U.  S.  vs.  Salen,  216  Federal,  420. 

Grand  jurors  have  authority  to  administer  oaths  and 
false  testimony  is  perjury.  Brzezinski  vs.  U.  S.,  198  Fed- 
eral, 65. 

A  United  States  Commissioner  is  authorized  to  ad- 
minister oaths  as  demanded  by  this  statute.  Cohen  \s. 
U.  S.,  214  Federal,  23. 


Offenses  Against  Public  Justice.  281 

Sec.  101b.  A  United  States  Commissioner  is  a  Com- 
petent Tribunal,  252  F.  471. 

An  oath  taken  on  a  Civil  Service  blank  is  an  offense, 
IT.  S.  vs.  Crandol,  233  F.  331. 

§  102.  In  the  following  cases,  perjury  has  been  suc- 
cessfully laid : 

False  oath  by  a  director  of  a  national  bank,  before  a 
notary  public.    United  States  vs.  Neal,  14  Federal,  767. 

Affidavit  of  an  applicant  for  an  entry  to  land,  made  be- 
fore the  clerk  of  the  County  Court,  United  States  vs. 
Hearing,  26  Federal,  744. 

False  oath  under  the  Timber  Culture  Act,  which  au- 
thorized the  oath  to  be  administered  in  the  District  where 
the  land  is  situated.  United  States  vs.  Madison,  21  Fed- 
eral, 628;  United  States  vs.  Shinn,  14  Federal,  447. 

False  swearing  in  an  affidavit  made  before  a  Justice  of 
the  Peace,  in  conformity  to  a  regulation  of  the  Secretary 
of  the  Treasury.    United  States  vs.  Bailev,  9  Peters,  238. 

Also  where  oath  is  administered  by  state  officer  au- 
thorized by  the  usage  of  the  Treasury  Department,  when 
Congress  required  an  oath  to  be  made.  United  States  vs. 
Winchester,  2  McLean,  135. 

An  affidavit  made  before  a  Justice  of  the  Peace,  to  sup- 
port a  pension  claim.  United  States  vs.  Boggs,  31  Fed- 
eral, 337. 

An  affidavit  made  before  a  notary  public,  in  support  of 
an  application  for  pension.  Noah  vs.  United  States,  128 
Federal,  270;  also  Williamson  vs.  United  States,  U.  S. 
Supreme  Court,  October  Term,  1907. 

Officer  of  the  General  Land  Office  of  the  United  States, 
hearing  a  contest  with  respect  to  a  homestead  entry,  in 
accordance  with  the  rules  promulgated  by  the  Interior 
Department,  constitutes  a  competent  tribunal.  Caha  vs. 
United  States,  152  U.  S.,  211. 

A  verification  of  a  cashier  of  a  national  bank,  of  a  re- 
port of  the  condition  of  the  bank.  United  States  vs.  Bar- 
tow, 10  Federal,  873. 

Judge  Speer,  in  United  States  vs.  Hardison,  135  Fed- 
eral, 419,  held  that  where  a  defendant  swore  falsely  as 
to  his  qualifications  to  become  a  surety  on  a  distiller's 
bond,  before  a  Deputy  Internal  Revenue  Collector,  Iip  was 


282  Federal.  Criminal  Law  Procedure. 

properly  charged   with  perjury,   even  though   the   oatli 
thereto  was  taken  before  a  United  States  Commissioner. 

In  United  States  vs.  Patterson,  172  Federal,  241,  Judge 
Woolverton  held  that  a  wilful  false  statement  in  an  oath 
to  an  application  for  patent,  made  as  required  by  Section 
4892  of  the  Revised  Statutes,  that  the  applicant  verily 
believes  himself  to  be  the  original,  first,  and  sole  inventor 
of  the  device  for  which  the  patent  is  sought,  is  of  a  ma- 
terial matter,  and  constitutes  perjury. 

In  United  States  vs.  Voltz,  14  Blatchf.,  page  15,  the 
Court  held  that  the  qualification  of  a  surety  to  a  bail  bond 
is  a  case  within  the  meaning  of  the  perjury  section,  and 
upon  which  perjury  can  be  based. 

In  Brace  vs.  United  States,  149  Federal,  871,  a  land 
affidavit  is  sufficient,  as  the  foundation  for  a  perjury 
prosecution. 

Naturalization  affidavits,  in  Schmidt  vs.  U.  S.,  133  F., 
257,  and  U.  S.  vs.  Dupont,  176  F.,  823. 

102a.     Additional  Perjury  Cases. 

False  oath  to  an  application  for  continuance  is,  Holmes 
vs.  U.  S.,  269  F.  96. 

An  acquittal  on  the  merits  usually  precludes  prosecu- 
tion for  perjury  on  such  trial,  though  prosecution  may 
be  had  for  perjury  in  subordinating  evidential  matter, 
Youngblood  vs.  U.  S.,  266  F.  795. 

Oath  to  application  for  passports  as  to  length  of  ac- 
quaintance with  the  applicant  is  not  perjury,  U.  S.  vs. 
Robertson,  257  F.  195. 

Affidavit  to  questionary  is,  Hardwick  vs.  U.  S.,  257  F 
505. 

An  oath  by  homesteader  for  the  General  Land  office  is, 
U.  S.  vs.  Morehead,  U.  S.  Sup.  Ct.  April  1917. 

An  oath  for  the  restoration  of  property  in  bankruptcy 
is  not  "material,"  Morris  vs.  U.  S.,  261  F.  175. 

§  103.  Materiality  and  Wilfulness. — The  indictment 
must  aver  unmistakably  the  materiality  of  the  oath,  and 
the  wilfulness  of  the  falsification.  U.  S.  vs.  Ammerman, 
176  Federal,  636.  A  false  statement,  declaration,  or  tes- 
timony, upon  a  collateral  issue,  will  not  sustain  perjury, 
and  neither  will  mistake  or  innocent  falseness  make  one 
guilty  of  the  offense. 


Offenses  Against  Public  Justice.  283 

It  is  sufficient  to  charge  generally  that  the  false  testi- 
mony was  in  respect  to  a  matter  material  to  the  issue. 
without  setting  out  the  facts  from  which  such  materiality 
appears.  If,  however,  the  facts  are  also  stated,  and  it 
clearly  appears  that  the  testimony  was  not  material,  a 
formal  allegation  of  materiality  will  not  save  the  indict- 
ment. United  States  vs.  Pettus,  84  Federal,  791.  So, 
also,  where  in  an  indictment  for  perjury  it  is  apparent 
from  the  averments  that  the  evidence  which  is  charged 
to  be  false  was  material,  it  is  not  essential  to  state  the 
legal  conclusion  by  alleging  that  the  evidence  was  ma- 
terial. The  Court  being  apprised  of  the  facts,  may  draw 
the  conclusion  without  the  allegation.  So,  also,*  where 
the  averments  as  to  the  materiality  of  what  is  alleged  to 
have  been  sworn  falsely  are  defective,  the  indictment  is, 
nevertheless,  good,  if  such  materiality  sufficiently  ap- 
pears on  its  face.    30  Cyc,  1435. 

§  103a.    Materiality,  Continued. — In  Hogue  vs.  U.  S., 

184  Federal,  245,  the  Court  held  that  even  though  there 
was  a  general  allegation  of  materiality  and,  thereafter  an 
attempt  to  set  forth  the  facts,  such  facts  must  in  them- 
selves show  materiality,  and  in  the  absence  of  such  show- 
ing the  indictment  would  be  held  defective.  Complying 
with  this  rule,  a  new  indictment  was  drawn  in  that  case 
and  it  was  subsequently  affirmed  in  Hogus  vs.  U.  S.,  192 
Federal,  918.  I  am  firmly  of  the  opinion  that  it  is  the  law 
as  supported  by  the  vast  majority  of  decisions  that  the 
indictment  must  allege  the  materiality  of  the  statement 
complained  of  which  may  be  done  by  a  simple  allegation 
or  by  pleading  the  facts  from  which  the  Court  may  de- 
termine its  materiality.  U.  S.  vs.  Salen,  216  Federal,  420; 
Ammerman  vs.  U.  S.,  185  Federal,  1. 

The  Circuit  Court  of  Appeals,  in  Ammerman  vs.  U.  S., 

185  Federal,  page  1,  in  which  they  reversed  the  same  case 
shown  in  176  Federal,  635,  announced  the  doctrine  con- 
tended for  here  that  is  to,  say,  that  it  must  be  alleged  in 
the  indictment  that  the  matter  sworn  to  was  material  or 
the  facts  set  forth  as  false  must  be  sufficient  in  themselves 
to  show  such  materiality.  U.  S.  vs.  Nelson,  199  Federal. 
464;  U.  S.  vs.  Ehodes,  212  Federal,  518;  Markham  vs. 
U.  S.,  160  U.  S.,  325.    If  an  indictment  alleges  materiality 


284  Fedekal  Criminal  Law  Procedure. 

but  thereafter  shows  that  the  alleged  false  statements 
were  not  material,  then  no  offense  is  plead;  U.  S.  vs. 
Rose,  212  Federal,  518.  A  general  averment  of  material- 
ity is  sufficient.  Baskin  vs.  U.  S.,  209  Federal,  740;  Hen- 
dricks vs.  U.  S.,  223  U.  S.,  178. 

Sec.  103b.     Materiality  Continued. 

See  Morris  vs.  U.  S.,  261  F.  175. 

Illustrations  of  "non-material"  oath  see  Epstein  vs. 
U.  S.,  271  F.  282. 

§  104.  Sufficiency  of  Indictment. — As  before  noticed, 
great  particularity  was  required  at  Common  Law;  and 
while  procedings  of  the  Federal  Courts  are  assimilated 
to  the  Common  Law  forms,  all  Federal  crimes  are  stat- 
utory, and  the  Common  Law  rules  in  passing  upon  the 
sufficiency  of  a  perjury  indictment  in  the  Federal  Court 
would  necessitate  the  same  strictness  with  reference  to 
its  proper  alleging  as  did  the  Common  Law,  but  Congress 
provided  a  saving  statute  in  Section  5396  of  the  old  stat- 
utes, which  is  still  the  law,  and  reads  as  follows: 

"In  every  presentment  or  indictment  prosecuted  against  any  person 
for  perjury,  it  shall  be  sufficient  to  set  forth  the  substance  of  the  offense 
charged  upon  the  defendant,  and  by  what  court,  and  before  whom  the 
oath  was  taken,  averring  such  court  or  person  to  have  competent 
authority  to  administer  the  same,  together  with  the  proper  averment 
to  falsify  the  matter  wherein  the  perjury  is  assigned,  without  setting 
forth  the  bill,  answer,  information,  indictment,  declaration,  or  any 
part  of  any  record  or  proceeding,  either  in  law  or  equity,  or  any 
affidavit,  desposition,  or  certificate,  other  than  as  hereinbefore  stated, 
»"d  without  setting  forth  the  commission  or  authority  of  th3  conr+. 
or  person  before  whom  the  perjury  was  committed." 

The  ordinary  rules  of  criminal  pleading,  and  the  above 
statute  being  clearly  in  mind,  all  that  is  necessary  under 
the  Federal  statute  is  to  draw  the  bill  in  such  plain  and 
intelligible  terms,  and  with  such  particularity  as  to  ap- 
prise the  accused  with  reasonable  certainty  of  the  offense 
for  which  he  is  sought  to  be  punished,  and  state  the  sub- 
stance of  the  controversy  upon  which  the  false  oath  was 
taken,  specify  the  Court  or  officer  by  whom  it  was  ad- 
ministered, aver  or  show  that  such  Court  or  officer  had 
authority  to  administer  an  oath,  allege  the  falsity  of  the 
oath,  and  assign  perjury  thereon.     Noah  vs.  U.  S.,  128 


Offenses  Against  Public  Justice. 

Federal,  270;  U.  S.  vs.  Cuddy,  39  Federal,  696;  U.  S. 
vs.  Walsh,  22  Federal,  622;  Markham  vs.  {'.  S..  L60  U. 
S.,  319,  40  Law  Ed.,  441,  30  Cyc.,  1425.  This  section  de- 
mands that  the  oath  must  have  been  wilful  and  an  alle- 
gation that  it  was  corruptly  taken  is  not  sufficient.  The 
indictment  must  allege  that  the  oath  was  wilfully  taken. 
United  States  vs.  Edwards,  43  Federal,  57;  U.  S.  vs. 
Lake,  129  Federal,  499;  United  States  vs.  Hearing,  26 
Federal,  744. 

Wilfulness  and  a  corrupt  intent  being  essential  ele- 
ments of  the  crime  of  perjury,  evidence  to  prove  such 
issues  goes  to  the  very  substance  of  the  offense,  and  is, 
therefore,  admissible.  All  of  the  record,  including  the 
judgment  of  the  case  in  which  the  perjury  is  alleged  to 
have  been  committed  is,  therefore,  admissible  upon  the 
question  of  motive.  If  perjury  were  committed  by  one 
in  his  own  defense  in  the  trial  of  a  criminal  case,  the  in- 
dictment and  judgment  would  be  admissible,  not  for  the 
purpose  of  showing  that  the  defendant  had  been  con- 
victed of  an  offense,  but  for  the  purpose  of  showing  his 
motive  to  testify  untruly  in  the  original  case;  but  it  is 
thought  that  the  Court  should  limit  the  consideration  of 
the  judgment  by  proper  instructions,  to  the  considera- 
tion of  motive  alone,  or  inducement,  as  some  authorities 
put  it.  A  judgment  so  introduced  and  so  restricted  by 
the  Court,  is  material  and  competent.  In  United  States 
vs.  Berkhardt,  31  Federal,  141,  the  trial  Court  set  aside 
a  judgment  of  conviction  of  perjury,  because  he  had 
admitted  the  judgment  in  the  original  case  for  all  pur- 
poses, and  without  limiting  it,  Wharton,  Criminal  Evi- 
dence, Section  602a.  The  same  rights  that  exist  in  favor 
of  the  prosecution  to  show  the  corrupt  motive  and  wil- 
fulness are  equally  pertinent  for  the  defense,  and  it  is 
at  all  times  admissible  and  competent  for  him  to  show  the 
lack  of  corrupt  motive,  or  to  rebut  the  existence  of  such 
a  motive. 

§  105.  Proof. — Perjury  must  be  proven  by  two  wit- 
nesses, or  by  onse  witness  and  corroborating  circum- 
stances, and  the  jury  should  be  informed,  in  some  pari 
of  the  instructions,  that  before  they  can  convict,  the  tact 
that  the  oath  was  false  must  be  shown  to  their  satisfac- 


286  Federal  Criminal  Law  Procedure. 

tion  in  such  way;  and  it  is  thought  in  this  connection 
that  the  instructions  must  also  somewhere  inform  the  jury 
what  is  meant  by  "corroborated."  State  vs.  Hunter,  181 
Missouri,  316;  80  S.  W.,  915;  People  vs.  Wells,  103  Calif., 
631;  U.  S.  vs.  Hall,  44  Federal,  864. 

§  105a.  Proof,  Continued. — As  stated  in  the  foregoing- 
paragraph  proof  must  be  by  two  witneses  or  by  one  wit- 
ness with  corroborating  circumstances.  Kahn  vs.  U.  S., 
214  Federal,  54;  Allen  vs.  U.  S.,  194  Federal,  664. 

§  105b.  Other  Cases. — Perjury  committed  during  the 
trial  on  oneself.  In  Allen  vs.  U.  S.,  194  Federal,  664,  the 
Court  of  Appeals  for  the  Fourth  Circuit  said  that  one 
may  be  convicted  of  perjury  for  testifying  falsely  in  his 
own  behalf  wherein  he  was  acquitted,  but  the  government 
should  not  institute  a  prosecution  for  perjury  on  sub- 
stantially the  same  evidence  presented  on  the  first  trial. 

In  that  opinion  the  Court  mentions  authorities  suit- 
porting  the  position  that  one  may  be  indicted  for  swearing 
falsely  on  his  own  trial,  and  also  cites  authorities  against 
the  correctness  of  that  doctrine.  In  the  latter  list  of 
cases,  however,  it  fails  to  notice  or  mention  the  case  of 
Coffey  vs.  U.  S.,  116  U.  S.,  436. 

In  the  Coffey  case  the  Supreme  Court  of  the  United 
States,  speaking  through  Judge  Blatchford,  said:  "Where 
an  issue  raised  as  to  the  existence  of  the  Act  or  fact  de- 
nounced has  been  tried  in  a  criminal  proceeding  instituted 
by  the  United  States,  and  a  judgment  of  acquittal  has 
been  rendered  in  favor  of  a  particular  person,  that  judg- 
ment is  conclusive  in  favor  of  such  person  on  the  subse- 
quent trial  of  a  suit  in  rem  by  the  United  States  where, 
as  against  him  the  existence  of  the  same  Act  or  fact  is 
the  matter  in  issue,  as  a  cause  for  the  forfeiture  of  the 
property  prosecuted  in  such  suit  in  rem." 

See  also  the  case  of  Chelson  vs.  Hoyt,  3  Wheat.,  245,  4 
L.  Ed.,  381;  U.  S.  vs.  McDee,  4  Dill.,  128;  Murff  vs.  State, 

68  Tex.  Crim.  App. .    There  should  be  no  attempt  by 

the  Government  and  its  prosecuting  officers  to  disregard 
the  verdict  and  judgments  of  its  own  Courts  by  seeking 
one  jury  to  find  that  another  gave  a  wrong  verdict  upon 
what  is  in  all  material  respects  the  same  testimony. 


Offenses  Against  Public  Justice.  287 

Sec.  105c.     Other  Cases  Continued. 

An  indictment  alleging  that  the  oath  was  taken  before 
a  "District  Judge,"  the  proof  followed  that  the  oath  was 
taken  before  the  court  and  administered  by  the  clerk, 
held  sufficient,  in,  West  vs.  IT.  S.,  258  F.  413. 

§  106.  Subornation  of  Perjury.— Section  126  of  the 
new  Code  reads  as  follows: 

"Whoever  shall  procure  another  to  commit  any  perjury  is  guilty 
of  subornation  of  perjury,  and  punishable  as  in  the  preceding  section 
prescribed," 

which  are  the  substantial  words  of  old  Section  5::!):!. 
An  indictment  is  sufficient  which  alleges  that  the  witness 
knew  the  testimony  to  be  false  and  that  the  defendant, 
knowing  it  was  perjury,  procured  her  to  commit  it.  Bab- 
cock  vs.  United  States,  34  Federal,  873;  United  States 
vs.  Thompson,  31  Federal,  331.  In  United  States  vs. 
Dennee,  3  Woods,  (U.  S.)  39,  the  Court  held  that  an  in- 
dictment must  allege  that  the  defendant  knew  that  the 
testimony  which  he  instigated  the  witness  to  give  was 
false,  and  the  defendant  knew  that  the  witness  knew  that 
the  testimony  she  was  instigated  to  give  was  false.  The 
same  particularity  and  accurateness  is  required  in  an 
indictment  under  this  section,  and  the  same  general  law- 
relates  thereto,  as  under  that  for  perjury.  The  following 
cases  may  be  interesting: 

U.  S.  vs.  Evans,  19  Federal,  912. 

U.  S.  vs.  Howard,  132  Federal,  325. 

U.  S.  vs.  Cobban,  134  Federal,  290. 

IT.  S.  vs.  Brace,  144  Federal,  869. 

U.  S.  vs.  Boren,  144  Federal,  801;  30  Cyc,  at  page  L440, 
gives  the  following  elements  of  an  indictment  for  subor 
nation,  with  supporting  authorities,  which  it  is  thought 
is  the   law: 

"An  indictment  for  subornation  of  perjury,  must  state  all  the 
essential  elements  constituting  the  crime  of  perjury,  as  well  as  of  sul>- 
oration  of  perjury.  It  must  set  forth  the  nature  of  the  proceeding  in 
which  the  alleged  perjury  was  committed;  the  court  or  officer  in  which, 
or  before  whom,  the  false  oath  was  taken;  that  the  witness  was  duly 
sworn;  that  the  testimony  was  material,  and  false;  that  defendant 
knowingly  and  wilfully  procured  another  to  swear  falsely;  that  the 
party   did   knowingly   swear   falsely;     that   defendant   knew   that   the 


288  Fedeeal  Ceiminal  Law  Peoceduee. 

testimony  of  the  witness  would  be  false;    and  that  he  knew  that  the 
witness  knew  said   testimony  was  false." 

A  charge  of  subornation  of  perjury  may  be  joined  with 
a  charge  of  perjury  in  the  same  indictment,  and  the  per- 
jurer and  the  suborner  may  both  be  included  in  it.  Com- 
monwealth vs.  Devine,  155  Mass.,  224;   29  N.  E.,  515. 

§  106a.  Attorney  Suborning. — An  attorney  who  ad- 
vises a  witness  to  testify  falsely  before  a  United  States 
Commissioner  in  order  that  she  might  assist  to  obtain  the 
discharge  of  her  husband,  is  guilty  of  subornation,  even 
though  the  indictment  charging  such  uses  the  word 
" trial"  and  the  word  "issue,"  in  presenting  the  case, 
and  even  though  a  trial  and  an  issue  within  the  technical 
meaning  of  those  words  cannot  be  held  before  a  United 
States  Commissioner.    Cohen  vs.  U.  S.,  214  Federal,  23. 

Subornation  may  be  successfully  laid  against  one  who 
induces  two  entrywomen  to  make  false  affidavits  to  the 
settlement,  residence  and  cultivation  of  the  lands  as  re- 
quired by  Section  2291  of  the  Eevised  Statutes.  Hallock 
vs.  U.  S.,  185  Federal,  424. 

§  106b.  Elements  of  Subornation. — 1.  A  witness 
must  have  testified  falsely  knowing  or  believing  the  tes- 
timony to  be  false.  (2)  The  accused  must  have  known 
or  believed  that  the  testimony  would  be  false.  (3)  The 
accused  must  have  known  or  believed  the  witness  would 
give  the  false  testimony  with  like  knowledge  or  belief. 
(4)  The  accused  must  have  induced  or  procured  the  wit- 
ness to  do  so.  Hallock  vs.  U.  S.,  185  Federal,  417;  2nd 
Vol.  Bishop's  New  Criminal  Law,  Section  1197.  Inciting 
to  false  swearings  which  are  not  perjuries  is  not  suborna- 
tion of  perjury.  Bishop  New  Criminal  Law,  Vol.  2,  page 
689. 

§  107.  Stealing  or  Altering  Process ;  Procuring  False 
Bail,  Etc. — Old  Section  5394  is  practically  re-enacted  in 
Section  127  of  the  new  Code,  except  that  under  the  old 
statute  the  Court  was  not  authorized  to  impose  both  pen- 
alties of  fine  and  imprisonment.  The  new  section  reads 
as  follows: 

"Whoever  shall  feloniously  steal,  take  away,  alter,  falsify,  or  other- 
wise avoid  any  record,  writ,  process,  or  other  proceeding,  in  any  court 


Offenses  Against  Public  Justice. 

of  the  United  States,  by  means  whereof  any  judgment  is  reversed, 
made  void,  or  does  not  take  effect;  or  whoever  shall  acknowledge, 
or  procure  to  be  acknowledged,  in  any  such  court,  any  recognizance, 
bail,  or  judgment,  in  the  name  of  any  other  person  not  privy  or  con- 
senting to  the  same,  shall  be  fined  not  more  than  five  thousand  dollars, 
or  imprisoned  not  more  than  seven  years,  or  both;  but  this  provision 
shall  not  extend  to  the  acknowledgment  of  any  judgment  by  an  attor- 
ney, duly  submitted,  for  any  person  against  whom  such  judgment  is 
had  or  given." 

Most  of  the  annotators  cite  United  States  vs.  Crecilius, 
34  Federal,  page  30;  Barber  vs.  United  States,  35  Fed- 
eral, 886,  and  5  Attorney  General's  Opinion,  523. 

The  two  first  eases  contain  practically  no  assist  nine  by 
decision  or  argument,  for  the  construction  of  the  statute. 
In  one  of  them  the  word  "alter"  is  treated  at  some  in- 
considerate length.  Andersen's  Dictionary  of  Law  de- 
fines the  word  alter  to  mean  "to  make  a  thing  different 
from  what  it  was."  The  definition  in  the  Century  Dic- 
tionary is  practically  the  same,  and  is  in  the  following 
words:  "to  become  different  in  some  respect;  to  vary; 
to  change." 

The  statute,  of  course,  does  not  make  an  innocent, 
thoughtless,  or  mistaken  alteration  or  falsification  an 
offense.  The  charge  must  include  an  unlawful  and  fe- 
lonious alteration  or  falsification. 

The  statute  also  includes  the  acknowledgment  of  any 
recognizance  or  bail  or  judgment  by  one  in  the  name  of 
another  without  authority. 

§  108.  Obstructing  Process,  or  Assaulting  an  Officer, 
Etc. — In  the  new  Code  Section  140  takes  the  place  of 
Section  5398  in  the  1878  statutes.  The  new  section,  which 
reads  as  follows: 

"Whoever  shall  knowlingly  and  wilfully  obstruct,  resist,  or  oppose 
any  officer  of  the  United  States,  or  other  person  duly  authorized,  in 
serving,  or  attempting  to  serve  or  execute,  any  mesne  process  or 
warrants,  or  any  rule  or  order,  or  any  other  legal  or  judicial  writ  or 
process  of  any  court  of  the  United  States,  or  United  States  Commis- 
sioner, or  shall  assault,  beat  or  wound  any  officer  or  other  person  duly 
authorized,  knowing  him  to  be  such  officer,  or  other  person  so  duly 
authorized,  in  serving  or  executing  any  such  writ,  rule,  order,  pro. 
warrant,  or  other  legal  or  judicial  writ  or  process,  shall  be  fined  not 
19 


290  Federal  Criminal  Law  Procedure. 

more  than  three  hundred  dollars,  and  imprisoned  not  more  than  one 
year.'' 

contains  some  interpolated  phrases  that  seem  to  strength- 
en and  broaden  the  old  statute.  In  other  words,  under 
the  new  statute,  the  words,  "or  other  person  duly  author- 
ized" would  protect  any  person  who  happened  to  be  a 
messenger  conveying  any  Court  process,  though  such 
person  would  not  be  an  officer  of  the  United  States,  with 
in  the  meaning  of  the  decisions,  which  requires  a  person 
to  have  been  nominated  and  commissioned  by  the  Execu- 
tive Department.  So  also,  the  words,  "or  any  other  legal 
or  judicial  writ  or  process"  are  placed  in  the  new  stat- 
ute; and  to  meet  that  line  of  decisions  which  has  held  in 
contempt  proceeding  that  a  United  States  Commissioner 
does  not  hold  any  United  States  Court,  and  is,  therefore, 
not  a  Court,  or  judge,  the  statute  specially  includes  the 
words,  "or  United  States  Commissioner." 

The  new  statute  also  includes  the  words  "knowing  him 
to  be  such  officer  or  other  person  so  duly  authorized," 
which  is  but  an  enactment  of  what  the  best  authorities 
had  already  determined  was  necessary  before  one  could 
be  convicted  for  an  alleged  violation  of  the  Section.  Nec- 
essarily, one  who,  by  mistake  or  without  knowledge,  ob- 
structed process  or  an  officer  should  not  be  prosecuted. 

In  United  States  vs.  Terry,  41  Federal,  771,  Judge 
Ross  held  that  the  Section  related  to  an  oral  order  of  a 
Court,  to  remove  from  a  Court  room  a  prisoner  who  was 
disturbing  the  proceedings  of  a  Court.  In  that  case,  it 
was  conceded  in  argument,  and  is  recognized  by  the 
Court  in  his  opinion,  that  at  the  time  the  defendant  re- 
sisted the  marshal  who  attempted  to  eject  her  from  the 
court  room  under  the  order  of  the  Judge,  that  such  order 
was  oral,  and  had  not  been  entered  of  record.  The  dis- 
tinction is  drawn  in  the  following  words: 

"Undoubtedly,  in  judicial  proceedings,  an  'order'  as  distinguished 
form  a  'judgment'  is  often  defined  as  one  reduced  to  writing  and  en- 
tered in  the  records  of  the  Court,  and  such  is  the  purport  of  many  of 
the  cases  referred  to  by  counsel  for  the  defendant,  but  this  is  by  no 
means  saying  that  such  only  is  an  order.  There  must,  in  the  nature 
of  things,  be  an  order  of  a  Court  made  before  it  is,  or  can  be,  writ- 


Offenses  Against  Public  Justice.  29] 

ten  out  in  the  records  of  the  Court  by  the  Clerk.  When  writ! 
out,  the  writing  becomes  a  record  of  the  order,  and  is  evidence  of  it. 
Orders  are  almost  daily  given  to  the  Marshal  concerning  matters  to 
be  performed  in  the  presence  01  the  Court,  and  they  are  as  constantly 
executed  before  being  written  out.  Indeed,  many  of  them  are  never 
reduced  to  writing  at  all.  Yet  there  can  be  no  doubt  of  their  validity. 
The  language  of  the  statute  in  question  is  broad  enough  to  include  all 
valid  oral  orders.  The  natural  ordinary  meaning  of  the  word  includes 
written,  as  well  as  unwritten  orders,  and  there  is  no  reason  in  the  pol- 
icy of  the  law  or  in  the  nature  of  things,  for  excluding  unwritten  orders. 
Indeed,  the  contrary  is  true.  There  is  just  as  much  reason  and  neces- 
sity for  making  it  an  offense  to  resist  the  execution  of  a  lawful  un- 
written order,  brought  distinctly  and  authoritatively  to  the  notice 
of  the  offending  party,  as  for  making  it  an  offense  to  resist  the  exe- 
cution of  one  in  writing."     United  States  vs.  Terry,  41  Federal,  773. 

The  essential  elements  of  a  charge  under  this  section 
are  three:  first,  the  issuance  of  a  legal  process,  warrant, 
writ,  rule,  or  order,  by  a  Court  of  the  United  States  or  a 
United  States  Commissioner;  second,  that  such  legal 
process,  warrant,  writ,  rule,  or  order,  after  the  same  was 
issued,  was  in  the  hands  of  some  officer  of  the  United 
States,  or  other  person  duly  authorized,  for  service;  and, 
third,  that  such  legal  process,  warrant,  writ,  rule,  or 
order  was  knowingly  and  wilfully  obstructed  or  inter- 
fered with.  United  States  vs.  Tinklepaugh,  3  Blatchf., 
425.  If  the  Tinklepaugh  case  seems  in  a  measure  to  con- 
flict with  the  Terry  case,  reason  and  public  justice  would 
seem  to  demand  that  the  Terry  case  be  the  ranking  au- 
thority. 

It  must  be  borne  in  mind  that  it  is  not  at  all  necessary 
that  actual  force  be  used  in  obstructing.  Passive  force, 
such  as  the  congregation  of  a  large  number  of  individ- 
uals, knowingly  and  determinedly,  in  the  way  of  the 
officer  who  is  attempting  to  serve  the  writ  or  process, 
would  be  within  the  decisions,  and  within  reason,  an  ob- 
struction which  would  come  within  the  statute.  Such 
was  the  construction  used  by  the  Court  in  charging  a 
grand  jury  in  2  Curtis,  637;  30  Federal  Cases,  No.  L8250. 
Obstruction  must,  therefore,  under  the  authorities,  in- 
clude not  only  resistance  but  all  impediments  or  opposi- 
tion or  obstacles,  as  outlined  in  the  case  of  the  United 
States  vs.  McDonald.  8  Biss.,  439;   26  Federal  Cases,  No. 


292  Federal  Criminal  Law  Procedure. 

15667.  The  lexicographers,  in  treating  the  word  "ob- 
struct," determine  it  to  mean  "to  impede  or  retard  ac- 
tion; to  hinder;  to  render  passage  difficult  or  impossible; 
to  pile  up  against."  The  ordinary  meaning  of  the  word, 
therefore,  has  been  accepted  in  its  lawful  interpretation, 
when  used  in  the  statute  under  discussion.  The  officer 
is  not  obliged  to  risk  his  life,  or  expose  himself  to  person- 
al violence.  Threats  by  a  person  in  possession  is  a  viola- 
tion, as  has  been  determined  in  United  States  vs.  Lowrv, 
2  Wash.,  169;  26  Federal  Cases  No.  15636;  U.  S.  vs. 
Smith,  1  Dill,  212;  27  Federal  Cases  No.  16333.  If  one  in 
possession  of  property  opposes  and  obstructs  the  execu- 
tion of  a  writ  of  possession  by  refusing  to  yield  posses- 
sion, and  by  threats  of  violence,  he  has  committed  an  of- 
fense against  this  statute.  United  States  vs.  Lowry,  2 
Wash.,  169;  26  Federal  Cases,  No.  15636. 

Under  this  statute,  a  state  jailer  who  holds  Federal 
prisoners  by  commitments  from  United  States  Courts 
under  the  statute  of  a  State,  is  protected,  and  a  forcible 
release  of  a  prisoner  in  his  hands  would  be  an  offense 
against  this  statute,  as  well  as  the  statute  for  rescuing  a 
prisoner,  which  is  new  Section  143  and  old  Section  5401. 
See  in  this  connection,  Matthews  vs.  United  States  32 
Court  of  Claims,  123.  By  following  the  cases  of  Blake  vs. 
United  States,  71  Federal,  286;  United  States  vs.  Mullin, 
71  Federal,  682;  and  United  States  vs.  Cover,  46  Fed- 
eral, 284,  in  construing  an  indictment  under  this  section, 
there  can  be  no  difficulty  at  arriving  at  its  lawful  essen- 
tials and  ingredients.  The  allegation  of  knowledge  can 
be  included  generally,  it  is  thought,  in  the  words  know- 
ingly and  wilfully  in  the  first  part  of  the  bill,  for  they 
will,  therefore,  be  construed  to  apply  to  each  of  the  nec- 
essary averments  of  substance,  though  it  may  be  con- 
sidered the  best  pleading,  and  surely  pleading  that  leaves 
no  room  for  doubt,  if  the  allegation  of  knowledge  is  re- 
peated in  the  body  of  the  bill,  with  reference  to  the  proc- 
ess and  the  person  handling  the  same.  In  other  words, 
in  addition  to  the  general  words  knowingly  and  wilfully 
at  the  first  part  of  the  indictment,  let  the  pleading  show 
that  the  person  charged  knew  that  the  person  attemping 
to  serve  the  writ  or  order  was  an  authorized  person,  and 


Offenses  Against  Pubuc  Justice.  293 

really  had  a  writ  or  order  from  a  competent  tribunal  or 
Court,  as  the  ease  may  be.  In  the  case  of  United  States 
vs.  McDonald,  8  Biss.,  page  439,  the  Court  held  that  the 
custodian  of  property  for  the  Marshal  was  an  officer 
within  the  meaning  of  the  old  Section.  In  United  States 
vs.  Martin,  17  Federal,  150,  the  Court  held  under  a  prose 
cution  for  a  violation  of  the  old  section  that  a  Deputy 
Marshal  was  an  officer  of  the  United  States,  within  the 
meaning  of  the  section,  as  is  also  the  keeper  of  a  State- 
jail,  and  process  issued  by  a  Commissioner  of  the  Circuit 
Court,  under  Section  1014  of  the  Revised  Statutes,  in 
causing  the  arrest  or  imprisonment  of  a  person,  was  en- 
titled to  the  protection  of  the  provisions  of  the  section. 

The  discussion  of  the  Judge  in  the  13  Federal,  United 
States  vs.  Huff,  at  page  639,  of  the  words  "disobedience" 
and  "resistance"  under  a  prosecution  for  violations  of 
Sections  5359  and  5360,  will  be  found  to  be  in  line  with 
the  views  heretofore  expressed  with  reference  to  there 
being  no  distinction  between  the  definitions  of  the  words 
as  found  in  the  dictionaries  and  as  found  in  the  decisions 
of  the  Courts. 

Of  course,  there  is  no  offense  when  one  resists  unau- 
thorized arrest.  A  reasoning  under  a  case  of  this  sort 
will  be  found  in  the  case  of  the  United  States  vs.  Mundell, 
1  Hughes,  415;   27  Federal  Cases,  No.  15834. 

Blackstone,  in  his  division  of  crime,  made  five  heads: 
first,  offenses  against  God  and  religion;  second,  offenses 
against  the  law  of  nations;  third,  offenses  against  the 
king  and  Government;  fourth,  offenses  against  the  com- 
monwealth, as  against  public  justice,  public  peace,  public 
trade,  public  health,  public  economy;  fifth,  offenses 
against  individuals — that  is,  against  their  persons,  their 
habitations,  and  their  property. 

Of  course,  such  division  is  arbitrary,  but  serves  to 
furnish  a  plan  for  the  student  and  the  legislator.  The 
offense  we  are  considering  comes  under  the  fourth  head, 
and  at  Common  Law  included  many  things,  such  as  re- 
sisting arrest  or  process,  obstructing  officers,  rescue,  es- 
capes, preventing  attendance,  briberies,  perjuries,  and 
contempts,  etc.    Mr.  Bishop  says  that  "no  government  is 


294  Federal  Criminal  Law  Procedure. 

perfect,  and  some  are  simply  terrible,  but  the  worst  is 
immeasurably  better  than  none."  To  interfere,  there- 
fore, with  the  performance  of  an  official  function,  is  a 
most  serious  concern,  since  the  public  good  requires  a 
due  performance  of  all  official  functions,  and  any  person 
who  interferes  therewith  is  an  enemy  to  the  Government. 

§  108a.  Advice  to  Avoid  Service  of  Process  May  Be 
Obstruction. — One  who  advises  and  induces  another  to 
leave  the  country  to  avoid  service  of  a  grand  jury  sub- 
poena is  guilty  of  impeding  the  administration  of  justice. 
Heinz  vs.  U.  S.,  181  Federal,  323. 

Sec.  108b.     Obstructing  Processes  Continued. 

A  peron  need  not  be  present  to  be  guilty,  but  he  must 
have  knowledge,  etc.,  Coleman  vs.  U.  S.,  268  F.  468. 

§  109.    Destroying  or  Stealing,  Etc.,  Public  Records. 

Section  128  of  the  new  Code,  which  changes  materially, 
in  both  wording  and  punishment,  old  Section  5403,  reads 
as  follows: 

"Whoever  shall  wilfully  and  unlawfully  conceal,  remove,  mutilate, 
obliterate,  or  destroy,  or  attempt  to  conceal,  remove,  mutilate,  obliter- 
ate, or  destroy,  or,  with  intent  to  conceal,  remove,  mutiltate,  obliterate, 
destroy,  or  steal,  shall  take  and  carry  away  any  record,  proceeding, 
map,  book,  paper,  document,  or  other  thing  filed  or  deposited  with  any 
clerk  or  officer  of  any  court  of  the  United  States,  or  in  any  public 
office,  or  with  any  judicial  or  public  officer  of  the  United  States,  shall 
be  fined  not  more  than  two  thousand  dollars,  or  imprisoned  not  more 
than  three  years,  or  both." 

The  very  wording  of  the  statute  itself  incorporates  the 
idea  that  there  must  be  the  specific  intent  to  destroy  or 
steal,  or  do  the  things  denounced  by  the  statute.  Where- 
ever  the  word  "wilful"  is  used,  or  wherever  the  context 
of  the  statute  clearly  indicates  that  it  should  be  read 
into  the  body  of  the  Act,  such  specific  intent  is  absolutely 
necessary,  before  the  offense  can  be  committed.  In  Unit- 
ed States  vs.  De  Groat,  30  Federal,  764,  the  facts  showed 
that  the  Government,  for  want  of  space,  had  stored  a  vast 
quantity  of  old  Internal  Revenue  records  in  an  out-house, 
from  which  they  were  stolen  by  the  defendants,  and  sold 
as  waste  paper  to  junk  dealers.  The  Court,  in  instructing 
a  verdict  of  not  guilty,  told  the  jury  in  substance  that 


Offenses  Against  Public  Justice.  29a 

the  Act  was  for  the  specific  purpose  of  the  protection  of 
records,  and  did  not  carry  punishment  for  mere  thefl 
of  Government  property,  and  the  case  not  showing  any 
intent  on  the  part  of  the  defendants  to  destroy  records, 
but  only  to  steal  something  that  belonged  to  another, 
would  not  support  an  indictment  under  old  Section  5403. 
It  must  be  borne  in  mind,  however,  that  the  old  Com- 
mon Law  definition  of  record  and  document  is  not  to  be 
used  in  circumscribing  and  limiting  the  purpose  of  the 
statute  under  discussion.  It  was  manifestly  intended  to 
protect  all  sorts  of  Court  and  public  office  records,  includ- 
ing all  papers  that  are  filed,  whether  such  papers  be  ac- 
curately or  inaccurately  drawn.  To  this  purpose  and 
construction  is  the  case  of  Mclnerney  vs.  United  States, 
143  Federal,  729,  by  the  Circuit  Court  of  Appeals  for 
the  First  Circuit.  In  that  case,  the  Court  held  in  sub- 
stance that  the  rule  that  a  criminal  or  penal  statute  must 
be  strictly  construed  does  not  mean  that  its  language 
must  be  given  the  narrowest  interpretation,  but  contem- 
plates a  reasonable  construction,  in  aid  of  the  purposes 
of  the  Act,  and  Courts  should  adopt  that  sense  of  the 
words  which  harmonize  best  with  the  context,  and  pro- 
motes in  the  fullest  manner  the  apparent  policy  and 
objects  of  the  legislature;  and,  therefore,  the  statute 
under  consideration,  which  makes  it  a  criminal  offense 
to  steal  or  destroy  any  record,  paper,  or  proceeding  of  a 
Court  of  justice,  or  any  paper  or  document  or  record  filed 
or  deposited  in  any  public  office  or  with  any  judicial  or 
public  officer,  will  not  be  construed  so  as  to  limit  the 
meaning  of  the  word  "record"  and  "document"  to  the 
technical  Common  Law  record  of  Courts  as  unrolled,  or 
to  technical  documents,  but  will  be  used  in  the  ordinary 
and  common  sense,  and  include  all  and  every  part,  not- 
only  of  such  technical  records  or  documents,  but  of  any 
paper  filed,  which  becomes  a  part  of  the  records  of  the 
Court  or  office,  and  that  a  prosecution  for  stealing  or  de- 
stroying a  record  of  a  Court  cannot  be  defeated  by  si  low- 
ing that  the  record  was  technically  imperfect  or  Lncor 
rectly  kept.  The  following  cases  may  be  interesting  upon 
one  or  the  other  phases  of  the  statute:  People  vs.  Bussey, 
82  Mich.,  49;   State  vs.  Bloor,  20  Mont.,  574;   People  vs. 


296  Federal  Criminal  Law  Procedure. 

Peck,  138  N.  Y.,  386;    ex  parte  Tongue,  29  Oregon,  48; 
Georgia  vs.  Jennings,  50  S.  C,  156. 

§  110.  Destroying  Records  by  Officer  in  Charge. — 
Old  Section  5408  is  practically  re-enacted  in  Section  129, 
which  reads  as  follows: 

"Whoever,  having  the  custody  of  any  record,  proceeding,  map, 
book,  document,  paper,  or  other  thing  specified  in  the  preceding  section, 
shall  wilfully  and  unlawfully  conceal,  remove,  mutilate,  obliterate, 
falsify,  or  destroy  any  such  record,  proceeding,  map,  book,  document, 
paper,  or  thing,  shall  be  fined  not  more  than  two  thousand  dollars, 
or  imprisoned  not  more  than  three  years,  or  both;  and  shall  more- 
over forfeit  his  office  and  be  forever  afterward  disqualified  from 
holding  any  office  under  the  Government  of  the  United  States." 

The  substance  of  this  section,  as  well  as  the  substance 
of  Section  128,  were  in  the  original  Act  of  February  26, 
1853,  10  St.  at  Large,  170,  and  are  companion  statutes. 
It  is  necessary,  in  prosecutions  under  Section  129,  that 
the  party  have  lawful  custody  of  the  record  or  other 
document  or  paper,  as  the  case  may  be,  before  the  penalty 
under  this  statute  can  be  inflicted.  In  Martin  vs.  United 
States,  168  Federal,  198,  the  Circuit  Court  of  Appeals  of 
the  Eighth  Circuit  held  that  a  Clerk  in  the  office  of  one 
who  had  charge  of  certain  Government  records  could  not 
be  prosecuted  under  this  section,  because  he  was  not 
lawfully  "in  custody."  The  meat  of  that  decision  is 
that  "custody"  means  keeping  and  implies  responsibility 
for  the  protection  and  preservation  of  the  person  or  thing 
in  custody;  and  a  document  in  a  public  office  in  the  gen- 
eral custody  of  a  Commissioner,  and  in  the  particular 
custody  of  his  Chief  Clerk,  under  whom  five  or  six  subor- 
dinate clerks  are  employed,  who  have  access  to  it,  in 
order  to  discharge  their  duties,  is  not  in  the  custody 
of  one  of  the  latter.  There  is  this  difference,  however, 
in  the  old  and  new  sections:  the  old  section  contained 
the  word  "fraudulently,"  while  the  new  section  contains 
the  word  "wilfully.'1  Under  the  old  section,  an  intent 
to  injure  or  alter  the  rights  or  interests  of  another,  or 
an  effect  to  so  injure  or  alter  some  of  them  was  essential 
to  a  fraud,  and  in  the  absence  of  such  intent,  attempt, 
and  effect,  an  act  could  not  be  done  fraudulently  under 


Offenses  Against  Public  Justice.  297 

that  section.  Martin  vs.  United  States,  168  Federal,  L98. 
Under  the  instant  section,  however,  fraudulent  intenl  is 
not  an  ingredient.  This  section,  like  the  preceding,  de- 
nounces the  acts  therein  specified  when  they  arc  wilfully 
done;  that  is,  when  they  are  committed  with  the  specific 
intent,  as  defined  in  Mclnerney  vs.  United  States,  L43 
Federal,  729,  cited  and  discussed  supra. 

Under  the  authority  of  Martin  vs.  United  States,  an 
indictment  drawn  in  the  language  of  the  statute  would  he 
insufficient. 

§  111.  Forging  Signature  of  Judge,  Etc.— Section  130 
of  the  new  Code  re-enacts  Section  5419  of  the  old  Stat- 
utes, and  reads  as  follows: 

"Whoever  shall  forge  the  signature  of  any  judge,  register,  or  other 
officer  of  any  court  of  the  United  States,  or  of  any  Territory  thereof, 
or  shall  forge  or  counterfeit  the  seal  of  any  such  court,  or  shall 
knowingly  concur  in  using  any  such  forged  or  counterfeit  signa- 
ture or  seal,  for  the  purpose  of  authenticating  any  proceeding  or 
document  with  a  false  or  counterfeit  signature  of  any  judge,  register, 
or  other  officer,  or  a  false  or  counterfeit  seal  of  the  court  subscribed 
or  attached  thereto,  knowing  such  seal  to  be  false  or  counterfeit, 
shall  be  fined  not  more  than  five  thousand  dollars,  and  imprisoned  not 
more  than  five  years." 

An  indictment  under  the  latter  portion  of  this  section, 
which  relates  to  the  use  of  any  false  signature  or  counter- 
feit seal,  would  be  fatally  defective,  unless  it  alleged 
that  the  act  was  knowingly  done. 

Certificate  of  Bankruptcy,  register  subject  of.  See  ex 
parte  Parks,  93  U.  S.,  18.  ' 

§  112.  Intimidation  or  Corruption  of  Witness  or 
Grand  or  Petit  Juror  or  Officer. — Section  135  of  the  new 
Code  contains  all  of  the.  elements  of  the  old  Statutes  5399 
and  5404,  changing  the  punishment  of  both,  and  incor- 
porating new  words  and  a  somewhat  broader  meaning, 
and  reads  as  follows: 

"Whoever  corruptly,  or  by  threats  or  force,  or  by  any  threatening 
letter  or  communication,  shall  endeavor  to  influence,  intimidate,  or 
impede  any  witness,  in  any  court  of  the  United  States,  or  before  any 
United  States  Commissioner,  or  officer  acting  as  such  commissioner, 
or  any  grand  or  petit  juror,  or  officer  in  or  of  any  court  of  the  United 
States,  or  officer  who  may  be  serving  at  any  examination  of  other  pro- 


298  Federal  Criminal  Law  Procedure. 

ceeding  before  any  United  States  Commissioner  or  officer  acting  as 
such  by  threats  or  force,  or  by  any  threatening  letter  or  threatening 
communication,  shall  influence,  obstruct,  or  impede,  or  endeavor  to 
influence,  obstruct,  or  impede  the  due  administration  of  justice  therein, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  one  year,  or  both.'' 

The  offenses  covered  by  this  section  are  not  new.  They 
are  Common  Law  crimes.  The  word  "corrupt,"  as  used 
in  each  portion  of  the  statute,  is  defined  by  Bishop  to 
mean  an  evil  purpose,  and  is  not  restricted  to  the  form 
of  evil.  No  particular  definition  of  the  sort  of  corruption 
or  threats  or  intimidation  or  force  can  be  given.  The 
length  and  breadth  of  the  same  must  depend  upon  the 
facts  of  the  particular  case,  as  coming,  within  the  judg- 
ment of  a  jury  and  Court,  within  the  purview  of  the  stat- 
ute, and  which  would,  if  left  unpunished,  result  in  a 
perversion  of  trammeling  of  our  courts,  witnesses,  of- 
ficers, or  litigants.  When  such  would  appear  to  be  the 
natural  result  of  something  done  or  undone,  then  the 
statute  would  seem  to  apply.  In  the  case  of  Wilder  et 
al  vs.  United  States,  143  Federal,  433,  a  form  of  indict- 
ment is  given  that  was  approved  by  the  Circuit  Court  of 
Appeals  for  the  Fourth  Circuit,  and  a  state  of  facts  which 
showed  that  the  defendant  corruptly  endeavored  to  in- 
duce other  persons  to  have  knowledge  of  facts  in  a  civil 
case  which  would  be  material  to  a  party  to  conceal  or 
deny  their  knowledge,  so  as  to  prevent  such  party  from 
obtaining  knowledge  or  procuring  evidence  of  such  facts, 
was  a  violation  of  the  old  Section  5399,  which  is,  in  a 
large  measure,  the  first  part  of  the  new  Section.  In 
that  case,  certain  parties  to  a  civil  action  arranged  and 
agreed  to  testify  with  reference-  to  certain  corner  trees 
that  were  supposed  to  be  the  starting  point  and  one  of 
the  boundary  lines  of  the  tract  of  land  in  controversy. 

The  words  "due  administration  of  justice"  import  a 
free  and  fair  opportunity  to  every  litigant  in  a  pending 
case  in  a  Federal  Court  to  learn  what  he  may  learn,  if 
not  impeded  or  obstructed,  concerning  material  facts, 
and  to  exercise  his  option  as  to  introducing  testimony  of 
such  facts,  and  a  violation  of  this  law  may  consist  in 


Offenses  Against  Public  Justice.  299 

preventing  a  litigant  from  learning  facts  which  he  mighl 
otherwise  learn,  and  in  thus  preventing  him  from  de 
ciding  for  himself  whether  or  not  to  make  use  of  such 
facts. 

Pettibone  vs.  United  States.— The  ranking  authority 
under  these  statutes  is  probably  the  case  of  Pettibone  vs. 
United  States,  148  U.  S.,  197,  37  Law  Ed.,  41'.).  The  case 
gives  excerpts  from  the  indictment.  The  following  prop- 
ositions are  announced  in  the  case,  which  musl  be  rec< 
nized  and  adhered  to  in  drafting  indictment: 

1.  There  must  be  a  specific  allegation  of  an  intenl  to 
obstruct  the  administration  of  justice  in  the  Federal 
Court. 

2.  There  must  be  an  allegation  that  the  defendant 
knew  of  the  proceedings  that  he  was  interfering  with. 
The  indictment  must,  therefore,  contain  the  words  know- 
ingly and  wilfully.  The  general  doctrine  of  the  penal 
law  that  ignorance  of  the  law  constitutes  no  defense  to 
an  indictment  for  their  violation,  is  a  rule  that  has  no 
application  here.  Knowledge  of  the  court  proceedings 
and  of  the  relation  thereto  of  the  party  intimidated  or 
otherwise  improperly  approached  is  necessary.  Among 
the  cases  cited  by  the  Court  in  the  Pettibone  case  is 
United  States  vs.  Bittinger,  (Mo.),  15  Am.  Law  Reg.  N. 
S.,  49,  24  Federal  Cases  No.  14,598,  in  which  it  was  held 
that  a  person  is  a  witness,  under  Section  5399,  who  is 
designated  as  such,  either  by  the  issue  of  a  subpoena  or 
by  the  endorsement  of  his  name  on  the  complaint,  but 
that  before  anyone  could  be  said  to  have  endeavored  to 
corruptly  influence  a  witness  under  that  Section,  he  musl 
have  known  that  the  witness  had  been  properly  desi 
nated  as  such.  Under  this  authority,  the  designation  of 
a  witness  by  the  District  Attorney,  as  the  including  of 
the  name  of  the  witness  in  the  complaint,  or  in  the  grand 
jury  docket,  or  by  issuing  a  subpoena  therefor,  would  be, 
it  seems,  sufficient.  In  United  States  vs.  Kee,  39  Federal, 
603,  the  Court  instructed  the  jury  that  the  defendanl 
would  be  guilty  of  violating  5399,  when  he  beats  one  sum- 
moned as  a  witness  before  a  United  States  Commissioner, 
for  the  purpose  of  intimidating  or  influencing  him  in  giv- 
ing his  testimony,  but  if  the  defendant  did  not  know  that 


300  Federal  Criminal  Law  Procedure. 

the  one  was  a  witness  before  the  United  States  Commis- 
sioner, and  beats  him,  on  account  of  insulting  language, 
the  beating  having  no  relation  to  the  character  of  the 
party  as  a  witness,  he  would  not  be  guilty  of  a  violation 
of  the  section.  In  United  States  vs.  Keen,  5  Mason,  453, 
it  was  held  that  it  was  no  defense  to  an  indictment  for 
forcibly  obstructing  or  impeding  an  officer  of  the  customs 
in  the  discharge  of  his  duty  that  the  object  of  the  party 
was  personal  chastisement,  and  not  to  obstruct  or  impede 
the  officer  in  the  discharge  of  his  duty,  if  he  knew  the 
officer  to  be  so  engaged.  It  is  the  official  character  that 
creates  the  offense,  and  the  scienter  is  necessary. 

In  Savin's  Petitioner,  131  U.  S.,  267;  ex  parte  McLeod, 
120  Federal,  10;  in  re  Brule,  71  Federal,  943,  the  position 
is  taken  that  the  mode  of  punishment  prescribed  by  these 
old  sections  was  not  exclusive,  if  the  offense  was  com- 
mitted under  such  circumstances  as  to  bring  it  within 
Section  725,  which  authorizes  the  Court  to  punish  for 
contempts.  In  Sharon  vs.  Hill,  24  Federal,  726,  it  was 
held  that  the  carrying  of  weapons  into  a  court  room, 
while  Court  was  in  session,  and  threatening  the  life  of 
the  lawyer  and  counsel  engaged  in  conducting  the  litiga- 
tion was  an  offense  under  this  statute,  as  was  also  the 
assaulting  of  a  commissioner  in  United  States  vs.  Mc- 
Leod, 119  Federal,  416. 

Under  the  authority  of  United  States  vs.  Thomas,  47 
Federal,  807,  and  United  States  vs.  McLeod,  119  Fed- 
eral, 416,  which  is  supported  by  the  intent  and  purpose 
of  the  statute,  there  must  be  a  pending  cause.  In  the 
Thomas  case,  Thomas  was  a  witness  on  behalf  the  United 
States  before  a  United  States  Commissioner.  The  cause 
was  dismissed.  Two  months  afterwards  Thomas  was 
assaulted  and  beaten  by  a  gang  of  men  at  his  house  in 
the  night  time.  The  men  were  indicted  under  Section 
5399.  The  position  was  taken  by  the  defendant,  and 
sustained  by  the  Court,  that  as  Thomas  was  not,  at  the 
time  of  the  beating,  a  witness  in  any  Court  of  the  United 
States,  or  in  any  cause  pending  therein,  the  defendant 
could  not  be  prosecuted  under  that  section.  In  this  con- 
nection, also  may  be  cited  ex  parte  Robinson,  19  Wallace, 
505;   in  re  Nagle,  135  U.  S.,  63;  U.  S.  vs.  Memphis  Rail- 


Offenses  Against  Public  Justice.  01 

road  Company,  6  Federal,  237;  U.  S.  vs.  Kilpatrick,  L6 
Federal,  765;  U.  S.  vs.  Polite,  35  Federal,  58;  in  re  Nagle, 
39  Federal,  833;  U.  S.  vs.  Armstrong,  59  Federal,  51 
In  in  re  Brule,  71  Federal,  943,  District  Judge  Eawley 
held  upon  a  contempt  proceeding,  that  the  bribing  of  a 
person  who  is  known  to  be  a  material  witness  in  a  pend- 
ing cause  to  hide  himself  and  remain  away  from  the 
Court,  thereby  preventing  his  testifying  in  such  case,  is 
punishable  by  indictment  under  Section  5399. 

§  112a.  Illustrations  of  Intimidation. — The  protection 
of  the  statute  reaches  grand  jury  proceedings.  Davy  vs. 
U.  S.,  208  Federal,  238;  Heinze  vs.  U.  S.,  181  Federal, 
322.  An  effort  by  threats  and  force  to  influence  and  in- 
timidate witnesses  before  a  United  States  Commissioner 
is  within  the  statute.    Charles  vs.  U.  S.,  213  Federal.  717. 

Sec.  112b.  Intimidation,  etc.,  of  Witnesses  and  Others 
Continued. 

See  U.  S.  vs.  Russell,  41  Sup.  Ct.  Rep.  300;  IT.  S.  Sup. 
Ct.  Rep.  Apr.  1921. 

The  alteration  of  records  is  "corruptly  impeding  jus- 
tice," Bosselman  vs.  U.  S.,  239  F.  82. 

See  also  Sec.  114. 

§  113.  Conspiring  to  Intimidate  Party,  Witness,  or 
Jury. — Section  136  of  the  new  Code,  which  supersedes 
old  Section  5406,  reads  as  follows: 

"If  two  or  more  persons  conspire  to  deter  by  force,  intimidation, 
or  threat,  any  party  or  witness  in  any  court  of  the  United  States,  or 
in  any  examination  before  a  United  States  Commissioner  or  officer 
acting  as  such  commissioner,  from  attending  such  court  or  examina- 
tion, or  from  testifying  to  any  matter  pending  therein,  freely,  fully,  and 
truthfully,  or  to  injure  such  party  or  witness  in  his  person  or  prop- 
erty on  account  of  his  having  so  attended  or  testified  or  to  influence 
the  verdict,  presentment,  or  indictment  of  any  grand  or  petit  juror 
in  any  such  court,  or  to  injure  such  juror  in  his  person  or  property, 
on  account  of  any  verdict,  presentment  or  indictment  lawfully  assent- 
ed to  by  him,  or  on  account  of  his  being  or  having  been  such  juror, 
each  of  such  persons  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  six  years,  or  both." 

The  old  section  contained  a  minimum  punishment  of  six 
months. 


302  Federal  Criminal  Law  Procedure. 

The  most  interesting  change  in  the  new  section  is  the 
addition  of  the  words,  "or  in  any  examination  before  a 
United  States  Commissioner,  or  officer  acting  as  such 
commissioner."  The  Supreme  Court  of  the  United 
States,  in  the  ease  of  Todd  vs.  United  States,  158  United 
States,  page  278,  Book  39  Law  Ed.,  982,  held  that  a  pre- 
liminary examination  before  a  Commissioner  is  not  a 
proceeding  "in  any  court  of  the  United  States"  within 
the  meaning  of  the  old  Section  5406.  In  that  case  the 
Court  observed  that  it  doubtless  was  within  the  power  of 
Congress  to  legislate  so  as  to  fully  protect  every  witness 
called  upon  by  the  laws  of  the  United  States  to  give  tes- 
timony in  any  case  and  under  any  circumstance,  but  that 
the  wording  of  5406  limited  such  protection  to  those  who 
head  dealing  with  a  "court"  of  the  United  States.  Un- 
der the  new  section,  as  above  quoted,  Congress  has  seen 
fit  to  legislate  as  suggested  by  the  Supreme  Court,  and 
the  present  statute,  therefore,  punishes  all  conspiracies 
to  deter  by  either  force,  intimidation,  or  threat,  any  party 
or  any  witness  in  any  court  of  the  United  States,  or  in 
any  examination  before  a  United  States  Commissioner, 
or  officer  acting  as  such  commissioner. 

This  legislation  was  made  necessary  because  of  the  de- 
cision in  the  Todd  case,  and  because  of  that  line  of  deci- 
sions therein  cited,  which  clearly  distinguished  United 
States  Commissioners  and  Circuit  Court  Commissioners 
from  Judges  and  United  States  Courts. 

The  form  of  indictment  given  in  the  Todd  case  is 
thought  to  contain  all  of  the  elements  that  are  necessary 
in  charging  an  offense  under  the  new  statute,  with  the 
possible  exception  that  the  bill  could  be  made  stronger, 
and  undoubtedly  good,  if  it  contained  an  allegation  of 
knowledge. 

Sec.  113a.  Conspiracy  to  Intimidate  Party,  etc.,  Con- 
tinued. 

A  conspiracy  to  prevent  a  witness  from  testifying  in 
a  land  contest  is  an  offense  under  this  section,  Foss  vs. 
U.  S.,  266  F.  881. 

§  114.  Attempt  to  Influence  Jury. — New  Section  137, 
in  the  following  words: 


Offenses  Against  Public  Justice.  303 

"Whoever  shall  attempt  to  influence  the  action  or  decision  of  any 
grand  or  petit  juror  of  any  court  of  the  United  States  upon  any  issue 
or  matter  pending  before  such  juror,  or  before  the  jury  of  which  he 
is  a  member,  or  pertaining  to  his  duties,  by  writing  or  sending  to  him 
any  letter  or  any  communication  in  print  or  writing,  in  relation  to 
such  issue  or  matter,  shall  be  fined  not  more  than  one  thousand  dollar--. 
or  imprisoned  not  more  than  six  months,  or  both." 

replaces  old  Section  5405. 

There  have  been  few,  if  any,  adjudications  under  this 
section,  as  disclosed  by  the  annotators  and  court  reports. 
It  is  almost  universal  in  its  broadness,  and  would  seem  to 
cover  practically  any  communication.  In  United  States 
vs.  Kilpatrick,  16  Federal,  765,  is  a  distinguished  Court 
opinion  covering  communications  by  officers  and  others 
to  grand  jurors,  and,  in  general,  the  conduct  of  such  body. 

This  statute,  in  connection  with  Sections  135  and  132, 
are  intended  directly,  and  primarily  for  the  preservation 
of  the  purity  of  the  juror  in  the  performance  of  his  of- 
ficial duty. 

Sec.  114a.     Attempt  to  Influence  Jury. 

An  attorney  drinking,  etc.,  with  a  jury  is  in  contempt 
of  the  court  in  re  Kelly,  243  F.  696;    see  also  Sec.  112. 

§  115.  Allowing  Prisoner  to  Escape.— Section  138  of 
the  new  Code  is  in  the  exact  words  of  Section  5409  of  the 
old  statutes,  and  reads  as  follows: 

"Whenever  any  marshal,  deputy  marshal,  ministerial  officer,  or  other 
person  has  in  his  custody  any  prisoner  by  virtue  of  process  issued 
under  the  laws  of  the  United  States  by  any  court,  judge,  or  commission- 
er, and  such  marshal,  deputy  marshal,  ministerial  officer,  or  other  per- 
son voluntarily  suffers  such  prisoner  to  escape,  he  shall  be  fined  not 
more  than  two  thousand  dollars,  or  imprisoned  not  more  than  two 
years,  or  both." 

This  statute,  of  course,  applies  to  a  State  Deputy  Sher- 
iff, or  Jailer,  who  has  control,  under  legal  authority  and 
process,  of  a  Federal  prisoner.  By  section  139,  the  above 
statute  applies  not  only  to  domestic  prisoners,  bul  any 
prisoner  in  custody,  charged  with  an  offense  against  a 
foreign  government  with  which  the  United  States  has  a 
treaty  of  extradition,  and  also  to  prisoners  held  in  cus- 


.304  Federal  Ceiminal  Law  Peocedure. 

tody  for  removal  to  the  Philippine  Islands.  It  is  prac- 
tically the  same  as  old  Statute  5410. 

§  115a.  Applies  to  State  Jailor.— Since  the  United 
States  has  a  right  to  put  prisoners  in  state  jails,  a  state 
jailer  who  allows  a  prisoner  to  go,  is  liable  in  contempt, 
as  well  as  to  the  penalties  of  the  section  under  discussion. 
Ex  parte  Shores,  195  Federal,  627.  A  conspiracy  to  al- 
low a  prisoner  to  escape  is  reached  by  the  statute.  Ex 
parte  Lyman,  202  Federal,  303. 

Sec.  115b.     Allowing  a  Prisoner  to  Escape. 

Is  a  contempt  though  purpose  seems  good,  O'Rourke 
251  F.  768;  there  is  a  difference  between  assisting  to  es- 
cape arid  what  is  not  an  assistance  and  also  harboring, 
Orth  vs.  U.  S.,  252  F.  566. 

§  116.  Rescuing,  Etc.,  Prisoner;  Concealing,  Etc., 
Prisoner  for  Whom  Warrant  Has  Issued. — Section  141 
of  the  new  Code,  in  the  following  words: 

"Whoever  shall  rescue  or  attempt  to  rescue  from  the  custody  of 
any  officer  or  person  lawfully  assisting  him,  any  person  arrested  upon 
a  warrant  or  other  process  issued  under  the  provisions  of  any  law  of 
the  United  States,  or  shall,  directly  or  indirectly,  aid,  abet,  or  assist 
any  person  so  arrested  to  escape  from  the  custody  of  such  officer  or 
other  person,  or  shall  harbor  or  conceal  any  person  for  whose  arrest 
a  warrant  or  process  has  been  so  issued,  so  as  to  prevent  his  discovery 
and  arrest,  after  notice  or  knowledge  of  the  fact  that  a  warrant  or 
process  has  been  issued  for  the  apprehension  of  such  person,  shall 
be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not  more 
than  six  months,  or  both," 

is  a  substitute  for  old  Sections  5401  and  5516.  The  new 
statute,  it  will  be  noted,  creates  several  offenses:  that  of 
rescuing  or  attempting  to  rescue;  that  of  directly  or  in- 
directly aiding,  abetting,  or  assisting  any  person  to  es- 
cape; that  of  harboring  or  concealing  any  person  for 
whose  arrest  a  warrant  has  been  issued.  A  successful 
prosecution  could  not  be  had  under  either  of  the  provi- 
sions of  this  statute,  unless  the  person  attempted  to  be 
rescued  was  in  the  possession  of  an  officer  lawfully,  and 
it  is  thought  that  the  indictment  must  contain  an  allega- 
tion of  knowledge.  The  latter  section  of  the  statute, 
which  relates  to  concealing,  requires  that  before  one  can 


Offenses  Against  Public  Justice.  30.") 

offend  he  must  have  knowledge  that  process  has  been 
issued  for  the  prisoner. 

§  117.  Rescue  at  Execution;  Rescue  of  Prisoner,  and 
Rescue  of  Body  of  Executed  Offender.— The  above  three 
offenses  are  covered  by  Sections  142,  14:;,  and  144  of  the 
new  Code,  and  were  originally  old  Sections  5400,  5401, 
and  5402  of  the  1878  Statutes.  These  new  statutes,  in 
their  order,  read  as  follows: 

"Sec.  142.  Whoever,  by  force,  shall  set  at  liberty  or  rescue  any  per- 
son found  guilty  in  any  court  of  the  United  States  of  any  capital 
crime,  while  going  to  execution  or  during  execution,  shall  be  fined 
not  more  than  twenty-five  thousand  dollars  and  imprisoned  not  more 
than  one  year." 

"Sec.  143.  Whoever,  by  force,  shall  set  at  liberty  or  rescue  any 
person  who,  before  conviction,  stands  committed  for  any  capital  crime; 
or  whoever,  by  force,  shall  set  at  liberty  or  rescue  any  person  com- 
mitted for  or  convicted  of  any  offense  other  than  capital,  shall  be 
fined  not  more  than  five  hundred  dollars  and  imprisoned  not  more 
than  one  year." 

"Sec.  144.  Whoever,  by  force,  shall  rescue  or  attempt  to  rescue 
from  the  custody  of  any  marshal  or  his  officers,  the  dead  body  of  an 
executed  offended,  while  it  is  being  conveyed  to  a  place  of  dissection 
as  provided  by  section  three  hundred  and  thirty-one  hereof,  or  by 
force  shall  rescue  or  attempt  to  rescue  such  body  from  the  place  where 
it  has  been  deposited  for  dissection  in  pursuance  of  that  section,  shall 
be  fined  not  more  than  one  hundred  dollars,  or  imprisoned  not  more 
than  one  year,  or  both." 

§  118.  Extortion  by  Internal  Revenue  Informers. — 
Section  145  of  the  new  Code  is  a  substantial  re-enactment 
of  old  Section  5484,  and  reads  as  follows: 

"Secc.  145.  Whoever  shall,  under  a  threat  of  informing,  or  as  a 
consideration  for  not  informing,  against  any  violation  of  any  law 
of  the  United  States,  demand  or  receive  any  money  or  other  valuable 
thing,  shall  be  fined  not  more  than  two  thousand  dollars,  or  imprison- 
ed not  more  than  one  year,  or  both." 

§  119.  Misprision  of  Felony. — Section  146  of  the  new 
Code  re-enacts  old  Section  5390,  in  the  following  words: 

"Sec.  146.  Whoever,  having  knowledge  of  the  actual  commission 
of  the  crime  of  murder  or  other  felony  cognizable  by  the  courts  of  tfie 
United  States,  conceals  and  does  not  as  soon  as  may  lie  disclosed  and 
make  known  the  same  to  some  one  of  the  judges  or  other  persons 
Tn^clviror'military  authority  under  the  United  States,  shall  be  fined 

20 


306  Federal  Criminal  Law  Procedure. 

not  more  than  five  hundred  dollars,  or  imprisoned  not  more  than  three 
years,  or  both." 

This  section  is  a  companion  to  Section  145,  above  quot- 
ed, and  the  two  together  are  thought  to  guarantee  pub- 
licity for  violators,  and  immunity  of  such  violators  from 
those  who  would  prey  upon  them.  Prosecutions  under 
either  of  these  are  not  disclosed  by  prision  to  be  criminal 
neglect,  either  to  prevent  the  commission  of  crime,  or  to 
bring  to  justice  the  offender  after  its  commission.  Bishop 
in  his  new  Criminal  Law,  defines  Misprision  of  misde- 
meanor as  unknown  to  the  language  of  the  law,  but  mis- 
prision of  treason  was  held  to  be  a  Common  Law  treason. 
We  will  later  see  that  by  Federal  statute,  misprision  of 
treason  is  denounced  in  old  Section  5333  and  new  Section 
3. 

§  120.  Bribery.— In  four  sections,  the  new  code  covers 
the  offenses  denounced  by  Sections  5449  and  5499  of  the 
old  Statutes,  and  then  creates  new  offenses. 

Sec.  120a.     Bribery  Continued. 

Giving  different  titles  to  officers  in  different  counts  is 
permissible,  Sneierson  vs.  U.  S.,  264  F.  268. 

Inspectors  performing  "official  functions"  are  "gov- 
ernment official,"  Sears  vs.  U.  S.,  264  F.  257. 

A  porter  at  a  railway  is  an  "official"  and  is  protected 
by  the  statute  from  bribe  when  the  railroad  is  under  gov- 
ernment control,  Krichman  vs.  U.  S.,  263  F.  538. 

"Approach"  to  a  juror  is  an  attempt  to  bribe — pro- 
vided there  is  knowledge,  U.  S.  vs.  Eussell,  41  Sup.  Ct. 
Rep.  260. 

§  121.  Bribery  of  a  Judge  or  Judicial  Officer. — Sec- 
tion 131  of  the  new  code  amplifies  and  enlarges  old  Sec- 
tion 5449,  and  reads  as  follows: 

"Whoever,  directly  or  indirectly,  shall  give  or  offer,  or  cause  to  be 
given  or  offered,  any  money,  property,  or  value  of  any  kind,  or  any 
promise  of  agreement  therefor,  or  any  other  bribe,  to  any  judge 
judicial  officer,  or  other  person  authorized  by  any  law  of  the  United 
States  to  hear  or  determine  any  question,  matter,  cause,  proceeding, 
or  controversy,  with  intent  to  influence  his  action,  vote,  opinion,  or 
decision  thereon,  or  because  of  any  such  action,  vote,  opinion,  or  de- 
cision, shall  be  fined  not  more  than  twenty  thousand  dollars,  or  im- 
prisoned not  more  than  fifteen  years,  or  both;    and  shall  forever  be 


Offenses  Against  Public  Justice.  307 

disqualified   to   hold    any   office    of   honor,    trust,   or    profit    under   the 
United  States." 

§  122.  Judge  or  Judicial  Officer  Accepting  Bribe,  Etc. 
— Section  132  of  the  new  Code  practically  re  enacts  old 

Section  5499,  and  reads  as  follows: 

"Sec.  132.  Whoever,  being  a  judge  of  the  United  States,  shall  in  any 
wise  accept  or  receive  any  sum  of  money,  or  other  bribe,  present, 
or  reward,  or  any  promise,  contract,  obligation,  gift,  or  other  security 
for  the  payment  of  money,  or  for  the  delivery  or  conveyance  of  any- 
thing of  value,  with  the  intent  to  be  influenced  thereby  in  any  opinion, 
judgment,  or  decree,  in  any  suit,  controversy,  matter,  or  cause  de- 
pending before  him,  or  because  of  any  such  opinion,  ruling,  decision, 
judgment,  or  decree,  shall  be  fined  not  more  than  twenty  thousand 
dollars,  or  imprisoned  not  more  than  fifteen  years,  or  both;  and  shall 
be  forever  disqualified  to  hold  any  office  of  honor,  trust,  or  profit  under 
the  United  States." 

This  section  relates  only  to  the  acceptance  of  a  bribe 
by  a  judge,  but  the  following  section  covers  practically 
every  person  authorized  by  any  law  of  the  United  States 
to  hear  or  determine  any  question.  See  also  Sections  160 
and  185. 

§  123.  Juror,  Referee,  Master,  U.  S.  Commissioner,  or 
Judicial  Officer,  Etc.,  Accepting  Bribe. — Section  133  of 
the  new  Code,  in  the  following  words: 

"Sec.  133.  Whoever,  being  a  juror,  referee,  arbitrator,  appraiser, 
assessor,  auditor,  master,  receiver,  United  States  Commissioner,  or 
other  person  authorized  by  any  law  of  the  United  States  to  hear  or 
determine  any  question,  matter,  cause,  controversy,  or  proceeding, 
shall  ask,  receive,  or  agree  to  receive,  any  money,  property,  or  value 
of  any  kind  or  any  promise  or  agreement  therefor,  upon  any  agree- 
ment or  understanding  that  his  vote,  opinion,  action,  judgment,  or  de- 
cision, shall  be  influenced  thereby,  or  because  of  any  such  vote,  opin- 
ion, action,  judgment,  or  decision,  shall  be  fined  not  more  than  two 
thousand   dollars,  or   imprisoned   not  more  than  two  years,   or  both" 

creates  offenses  that  were  unknown  to  the  old  statute 

§  123a.  Indictment — Who  is  Officer? — An  indict  hum  it 
must  show,  as  must  also  the  proof,  that  the  act  charged 
was  an  official  act.  U.  S.  vs.  Birdsall,  195  Federal.  980. 
The  person  charged  with  violating  this  statute,  musl  at 
the  time  of  the  violation  have  been  an  officer  as  within  the 
statute  provided  and  described.  U.  S.  vs.  Birdsall,  206 
Federal,  818. 


V 


308  Federal  Criminal  Law  Procedure. 

An  "officer"  within  the  meaning  of  this  section  where 
applicable,  and  Section  117  of  the  Code,  means  one  who 
is  either  appointed  by  the  President  by  and  with  the  ad- 
vice and  consent  of  the  Senate,  or  by  the  president  alone, 
the  Courts  of  law,  or  the  heads  of  some  executive  depart- 
ment, and  a  special  officer  appointed  by  the  Commissioner 
of  Indian  Affairs  for  the  suppression  of  the  liquor  traffic 
among  the  Indians  is  not  an  officer  of  the  United  States. 
U.  S.  vs.  Van  Wert,  195  Federal,  974. 

Sec.  123b.     Who  is  an  Officer. 

See  Burnap  vs.  U.  S.,  40  Sup.  Ct.  Eep.  374;  U.  S.  Sup. 
Ct.  Apr.  1921. 

A  person  not  appointed  in  the  manner  declared  under 
constitution  article  2,  section  2,  is  not  an  "official  of  the 
United  States"  but  only  an  agent  or  employee  of  the 
government;  but  Income  Tax  Inspectors  appointed  by 
the  Commissioner  of  Internal  Revenue  with  the  approval 
of  the  Secretary  of  the  Treasury,  were  officials  of  the 
United  States  within  Criminal  Code  Section  117,  relat- 
ing to  bribery  and  constitution,  article  2,  section  2,  Mc- 
Grath  vs.  U.  S.,  275  F.  295. 

It  is  not  necessary  that  one  should  be  an  official  of 
the  United  States  in  order  to  act  for,  or,  on  behalf  of 
the  United  States  or  in  any  official  capacity  within  the 
meaning  of  section  117  of  the  Criminal  Code,  relating  to 
bribery,  McGrath  vs.  U.  S.,  275  F.  295. 

§  124.  Witness  Accepting  Bribe. — Section  134  of  the 
new  Code,  which  reads  as  follows: 

"Sec.  134.  Whoever,  being,  or  about  to  be,  a  witness  upon  a  trial, 
hearing,  or  other  proceeding,  before  any  court,  or  any  officer  author- 
ized by  the  laws  of  the  United  States  to  hear  evidence  or  take  testi- 
mony, shall  receive,  or  agree  or  offer  to  receive,  a  bribe,  upon  any 
agreement  or  understanding  that  his  testimony  shall  be  influenced 
thereby,  or  that  he  will  absent  himself  from  the  trial,  hearing,  or 
other  proceeding,  or  because  of  such  testimony,  or  such  absence,  shall 
be  fined  not  more  than  two  thousand  dollars,  or  imprisoned  not  more 
than  two  years,  or  both." 

is  likewise  an  entirely  new  statute,  without  any  parallel 
in  the  Statutes  of  1878. 


Offensks  Against  Public  Justice.  309 

§  125.  Members  of  Congress  Accepting  Bribes.  Etc. 
— In  the  next  Chapter,  under  the  head  of  Offenses  Relat- 
ing to  Official  Duties,  will  be  found  a  discussion  and  ci- 
tation of  the  statutes  of  the  new  Code,  that  inhibit  mem- 
bers of  Congress  and  other  United  States  officers  from 
accepting  bribes,  such  statutes  and  treatment,  however, 
being  a  different  Chapter,  for  the  reason  that  they  do  not 
relate  directly  to  offenses  against  public  justice. 


CHAPTER  VII. 

OFFENSES  RELATING  TO  OFFICIAL  DUTIES. 

§  126.  Extortion,   Generally;     Definition,   Etc. 

127.  Extortion  as  a  Federal  Offense:    5481—85. 

128.  Receipting  for  Larger  Sums  Than  are  Paid:    5483 — 86. 

129.  Species  of  Embezzlement:      5488,  5489,   5490,  5491,  5492,  5493, 

5494,  5495,  5496,  and   5497—87,   88,  89,   90,  91,   92,   93,  94,  95, 
96,  97,  98,  99,  100,  and  101. 

130.  Disbursing  Officers  Unlawfully  Converting,  Etc.,  Public  Money: 
New  Code,  87. 

131.  Failure  of  Treasurer  to  Safely  Keep  Public  Funds:    New  Code, 

88. 

132.  Custodians    of   Public   Money   Failing   to    Safely   Keep:     New 
Code,  89. 

133.  Failure  of  Officer  to  Render  Accounts,  Etc.,  90 

134.  Failure  to  Deposit,  as  Required:    New  Code,  91. 

135.  Provisions    of    the    Five    Preceding    Sections,    How    Applied: 
New  Code,  92. 

136.  Record  Evidence  of  Embezzlement:     New  Code,  93. 

137.  Prima  Facie  Evidence:    New  Code,  94. 

138.  Evidence  of  Conversion:    New  Code,  95. 

139.  Banker,  Etc.,  Receiving  Deposit  From  Disbursing  Officer:   New 

Code,  96. 

140.  Embezzlement  by  Internal  Revenue  Officers,  Etc.:     New  Code, 

97. 

141.  Officer   Contracting  Beyond    Specific   Appropriation:     5503 — 98. 

142.  Officer  of  United  States  Court  Failing  to  Deposit  Moneys,  Etc.: 

5504—99. 

143.  Receiving  Loan  or  Deposit  from  Officer  of  Court:     New  Code, 

100. 

144.  Failure  to  Make  Returns  or  Reports:    1780—101. 

145.  Aiding  in  Trading  in  Obscene  Literature,  Etc.:    1785 — 102. 

146.  Collecting  and  Disbursing  Officers  Forbidden  to  Trade  in  Public 

Funds:     1788  and  1789—103. 

147.  Judges,  Clerks,  Deputies,  Marshals,  and  Attorneys,  and  Their 

Deputies   Forbidden  to   Purchase  Witness  Fees,   Etc.:     29    St. 
L.,   595—104. 

148.  Falsely  Certifying,  Etc.,  as  to  Record   of  Deeds:      New  Code, 

105. 

149.  Other  False  Certificates:     New  Code,   106. 

150.  Inspector  of  Steamboats  Receiving  Illegal  Fees:     5482 — 107. 

151.  Pension  Agent  Taking  Fee,  Etc.:    5487 — 108. 

152.  Officer  not  to  Be  Interested  in  Claims  Against  United  States: 

5498—109. 

(310) 


Offenses  Relating  To  Official  Duties.  ::i  1 

§  153.     Member  of  Congress,  Etc!,  Soliciting  or  Accepting  Bribe-    L781 
and  5500  and  5502—110. 

154.  Offering,  Etc.,  Member  of  Congress  Bribe:     5450—111. 

155.  Member  of  Congress  Taking  Consideration  for  Procuring  Con- 

tracts,   Offices,    Etc.;     Offering    Member    Consideration      I 
1781—112. 

156.  Member  of  Congress  Taking  Compensation  in  Matters  to  Which 
the  United  States  Is  a  Party:     1782 — 113. 

157.  Member  of  Congress  Not  to  Be  Interested  in  Contract-   37:;9— 

114. 

158.  Officer  Making  Contract  with  Member  of  Congress:    3742—  115. 

159.  Contracts    to    Which    the    Two    Preceding    Sections    Do 
Apply:    3740—116. 

160.  United   States  Officer  Accepting  Bribe:     5501  and  5502—117. 

161.  Political  Contributions  Not  to  Be  Solicited  by  Certain  Officers: 

New  Code,  118. 

162.  Political  Contributions  Not  to  Be  Received  in  Public  Offices: 
New  Code,  119. 

163.  Immunity  from  Official  Proscription,  Etc.:     New  Code,  120. 

164.  Giving   Money,    Etc.,    to    Officials    for    Political    Purposes    Pro- 
hibited:   New  Code,  121. 

165.  Penalty  for  Violating  the  Provisions   of  the   Four   Preceding 
Sections,  New  Code,  122. 

166.  All  of  the  Above,  Civil  Service  Act:    1  Sup.,  396. 

167.  Government    Officers,    Etc.,    Giving   Out    Advance    Information 
Respecting  Crop  Reports:    New  Code,  123. 

168.  Government    Officer,    Etc.,    Knowingly    Compiling    or    Issuing 
False  Statistics  Respecting  Crops:    New  Code,  124. 

169.  Counterfeiting    Weather    Forecasts    Interfering    with    Signals, 

Etc.:   33  St.  L.,  864. 

§  126.  Extortion. — At  the  Common  Law,  extortion 
was  one  of  the  forms  of  malfeasance  in  office.  Mr.  Bish- 
op,  in  his  second  volume  of  Criminal  Law,  at  page  225, 
says  that  those  who  assume  official  position  place  them- 
selves thereby  in  circumstances  to  exert  a  certain  power, 
which  brings  with  it  corresponding  obligations,  cogniz- 
able by  the  Criminal  Law,  and  among  wrongful  official 
acts,  extortion  is  particularly  reprehensible.  Hence  it  is, 
that  the  law  separates  it  from  the  rest  under  a  name  of 
its  own.  Anderson,  in  his  Dictionary  of  Law,  defines 
extortion  to  be  "that  abuse  of  public  justice  which  con- 
sists in  an  officer's  unlawfully  taking,  by  color  of  his 
office,  from  any  man,  any  money  or  thing  of  value  that 
is  not  due  to  him,  or  more  than  is  due,  or  before  it  is  due, 


r 


312  Federal  Criminal  Law  Procedure. 

obtaining  money  or  other  valuable  thing  by  compulsion 
or  force  of  motives  applied  to  will."  Wharton,  in  his 
second  volume  of  Criminal  Law,  paragraph  1574,  de- 
fines extortion  as  any  oppression  by  color  of  right.  Bish- 
op, in  his  second  volume  of  Criminal  Law,  page  225, 
defines  it  as  the  "corrupt  demanding  or  receiving  by  a 
person  in  office  of  a  fee  for  services  which  should 
be  rendered  gratuitously;  or,  where  compensation  is 
permissible,  of  a  larger  fee  than  the  law  justifies,  or  a 
fee  not  yet  due."  Corruption,  as  used  in  these  definitions, 
and  as  applied  to  the  offense  of  extortion,  implies  an  evil 
mind;  hence  it  is  not  committed  when  the  fee  comes 
voluntarily,  in  return  for  real  benefits  conferred,  by  extra 
exertions  put  forth.  Second  Bishop's  Criminal  Law  page 
226;  State  vs.  Stotts,  5  Black.,  460;  Rex  vs.  Baines,  6 
Mod.,  192;  Williams  vs.  S.,  2  Sneed,  160;  Evans  vs. 
Trenton,  4  Zab.,  764. 

§  127.  Federal  Offense. — The  general  statute  against 
extortion  was  old  Section  5481,  which  limited  extortion 
to  an  "officer"  of  the  United  States.  Under  the  authori- 
ties of  United  States  vs.  Schlierholz,  in  137  Federal,  616, 
and  United  States  vs.  same,  in  133  Federal,  333,  and  the 
cases  therein  cited,  it  appeared  that  the  various  bureaus 
of  the  Executive  and  Judicial  Departments  of  the  Gov- 
ernment were  administering  their  respective  affairs 
through  so  many  agents  and  clerks  and  employees,  who, 
in  turn,  could  and  did  practice  extortion  and  such  sort 
of  malfeasance,  but  who  are  not  really  "officers"  within 
the  meaning  of  the  Act  and  the  decisions  and  authorities 
above  referred  to,  that  Congress  passed  the  Act  of  June 
28,  1906,  amending  Section  5481,  which  is  now  practically 
re-enacted  in  Section  85  of  the  new  Code,  which  is  in  the 
following  words: 

"Sec.  85.  Every  Officer,  Clerk,  agent,  or  employee  of  the  United 
States,  and  every  person  representing  himself  to  be  or  assuming  to 
act  as  such  officer,  clerk,  agent,  or  employee,  who,  under  color  of  his 
office,  clerkship,  agency,  or  employment,  or  under  »?olor  of  his  pre- 
tended or  assumed  office,  clerkship,  agency,  or  employment,  is  guilty  of 
extortion,  and  every  person  who  shall  attempt  any  act  which  if  per- 
formed would  make  him  guilty  of  extortion,  shall  be  fined  not  more 
than  five  hundred  dollars,  or  imprisoned  not  more  than  one  year,  or 
both." 


Offenses  Relating  To  Official  Duti  313 

The  above  statute  includes  not  only  every  officer  of  the 
United  States,  but  every  clerk,  agent,  employee,  and 
every  other  person. 

The  Supreme  Court  of  the  United  States,  in  Williams 
vs.  United  States,  168  U.  S.,  382,  42  Law  Ed.,  512,  held 
that  a  Chinese  Inspector  could  be  guilty  of  extortion 
under  the  old  Section.  Other  cases  of  more  or  less  in- 
terest are  United  States  vs.  Germane,  99  U.  S.,  508;  U. 
S.  vs.  Waitz,  3  Sawy.,  28  Federal  Cases  No.  16,631. 

In  United  States  vs.  Harned,  43  Federal,  376,  a  Distrid 
Judge,  in  passing  upon  a  motion  to  dismiss  the  prosecu- 
tion, held  that  the  word  "extortion"  implies  that  the 
money  paid  was  extorted  on  the  part  of  the  one  who  re- 
ceived it,  and  was  paid  unwillingly  by  the  party  paying 
the  same,  and  that,  therefore,  where  there  was  a  volun- 
tary payment  by  the  witness,  knowing  at  the  time  thai 
it  was  in  excess  of  the  amount  that  was  required  to  be 
paid,  and  that  the  same  was  willingly  paid,  and  noj  <!»• 
manded,  would  not  support  a  prosecution,  and  therefore 
thelhotion  to  dismiss  was  granted. 

Bearing  in  mind  the  definitions  above  quoted,  and  that 
there  must  be  an  allegation  of  corruptness,  as  above  de- 
fined, it  is  not  believed  that  the  Harned  case  states  the 
rule  correctly.  The  purpose  of  the  statute  is  to  prevent 
the  receipt  by  an  officer  of  money  in  excess  of  that  to 
which  he  is  legally  entitled,  and  if  he  asks  for  more,  with 
knowledge  and  corrupt  purpose,  the  asking,  it  is  thought, 
would  be  the  demand  comprehended  in  the  definitions, 
and  the  payment  thereof  would  be  sufficiently  unwilling 
under  the  law  to  constitute  the  offense  of  extortion.  Tt 
is  not  here  argued  that  an  innocent  overcharge  or  an 
overpayment  or  an  overdemand,  or  a  taking  of  property 
or  money  without  the  corrupt  thought  and  intent,  would 
constitute  the  offense;  but  when  an  officer,  knowing  lie  is 
entitled  to  a  certain  sum,  deliberately  and  corruptly 
makes  his  bill  or  demand  for  a  larger  sum,  public  policy 
would  demand  that  he  suffer  prosecution  under  this  stat- 
ute. 

The  case  of  United  States  vs.  Moore,  in  the  18JFederal, 
page  686,  is  a  prosecution  under  old  Section  5485,  for  de- 


314  Federal  Criminal  Law  Procedure. 

manding  or  receiving  a  greater  sum  than  ten  dollars  in  a 
pension  case,  and  its  reasoning  may  be  of  interest  in 
studying  the  instant  statute.  Under  the  Revenue  Acts, 
considered  elsewhere,  will  be  found  a  statute  relating  to 
extortion  by  revenue  officers  or  agents.  Under  the  old 
law,  this  inhibition  was  contained  in  Section  3169.  The 
case  of  United  States  vs.  Deaver,  14  Federal,  595,  in 
passing  upon  this  particular  statute,  defines  extortion  to 
he  the  taking  or  obtaining  of  anything  from  another  by 
a  public  officer,  by  means  of  illegal  compulsion  or  oppres- 
sive exaction,  and  holds  that  an  officer  who  collects  a  sum 
of  money  as  special  taxes  from  a  person  as  wholesale  and 
retail  dealer  in  spirits,  when  no  such  taxes  have  been 
regularly  assessed  against  him,  is  guilty  of  oppression, 
although  such  party  has  been  guilty  of  selling  spirits  at 
wholesale  and  retail,  without  a  license,  as  required  by 
law,  and  the  fact  that  he  reported  such  taxes  to  the  Col- 
lector of  the  District  as  received,  and  the  Collector  of 
the  District,  in  his  settlement  with  the  Revenue  Depart- 
ment was  required  to  pay  the  sum  collected  after  the 
manner  of  its  collection  was  fully  known  to  the  Depart- 
ment, will  not  render  legal  the  acts  of  the  defendant, 
knowingly  and  wilfully  done  without  authority  of  law. 

That  same  case,  in  considering  further  the  offense,  de- 
cided in  substance,  that  the  principle  and  policy  of  the 
Common  Law  that  a  ministerial  officer  who  had  arrested 
a  person,  and  who  takes  from  such  person  money,  or 
other  reward  under  a  pretense  or  promise  of  getting  the 
offender  discharged,  is  guilty  of  a  criminal  offense,  and 
under  the  Section  3169  is  extended  to  officers  of  the  Reve- 
nue, and  any  such  officer  who  accepts  or  attempts  to  col- 
lect, directly  or  indirectly,  as  payment  or  gift  or  other- 
wise, any  sum  of  money  or  other  thing  of  value,  for  a 
compromise  of  a  violation  of  the  Revenue  laws,  is  guilty 
of  a  misdemeanor. 

§  128.  Receipting  for  Larger  Sums  than  are  Paid. — 
Section  5483  of  the  old  Statutes,  is  changed  by  Section  86 
of  the  new  Code,  which  reads  as  follows: 

"Sec.  8G.  Whoever,  being  an  officer,  clerk,  agent,  employee,  or  other 
person    charged    with    the    payment    of    any    appropriation    made    by 


Offenses  Relating  To  Official  Duties.  315 

Congress,  shall  pay  to  any  clerk  or  other  employee  of  the  United  States 
a  sum  less  than  that  provided  by  law,  and  require  such  employee  to 
receipt  or  give  a  voucher  for  an  amount  greater  than  that  actually  paid 
to  and  received  by  him,  is  guilty  of  embezzlement,  and  shall  be  fined 
in  double  the  mount  so  withheld  from  any  employee  of  the  Government, 
and  imprisoned  not  more  than  two  years." 

The  old  statute,  was  limited  by  the  word  "officer," 
just  as  was  old  Section  5481.  New  Section  86,  however, 
includes  not  only  "officer,"  but  clerk,  agent,  or  employee, 
or  other  person,  and  in  such  broadness  includes,  it  is 
thought,  every  paying  officer  of  the  Federal  Government. 
In  United  States  vs.  Mayers,  81  Federal,  page  159,  which 
was  a  decision  under  the  old  statute,  a  postmaster  was 
held  to  be  an  "officer"  within  the  meaning  of  that  stat- 
ute, and  subject  to  indictment  for  having  received  a 
receipt  for  a  larger  amount  than  that  which  he  actually 
paid  a  letter  carrier  employed  in  his  office.  That  decision 
also  contains  a  copy  of  the  indictment  in  that  case,  which 
was  held  to  be  sufficient. 

§  129.  Species  of  Embezzlement. — Sections  5488, 
5489,  5490,  5491,  5492,  5493,  5494,  5495,  5496,  and  5497 
of  the  1878  Revised  Statutes,  denominate  certain  acts 
with  reference  to  handlers  of  the  public  money,  such  as 
disbursing  officers  and  depositories,  to  be  statutory  em- 
bezzlements, the  specific  elements  of  which  are  respec- 
tively therein  included.  These  statutes  are  practically 
re-enacted  under  the  following  sections  of  the  new  Code. 

§  130.  Disbursing  Officer  Unlawfully  Converting,  Etc., 
Public  Money. — Section  87  of  the  new  Code  reads  as 
follows: 

"Sec.  87.  Whoever,  being  a  disbursing  officer  of  the  United  States, 
or  a  person  acting  as  such,  shall  in  any  manner  convert  to  his  own 
use,  or  loan  with  or  without  interest,  or  deposit  in  any  place  or  in 
any  manner,  except  as  authorized  by  law,  any  public  money  intrusted 
to  him;  or  shall,  for  any  purpose  not  prescribed  by  law,  withdraw 
from  the  Treasurer,  or  any  assistant  treasurer,  or  any  authorized  de- 
pository, or  transfer,  or  apply,  any  portion  of  the  public  money  in- 
trusted to  him,  shall  be  deemed  guilty  of  an  embezzlement  of  the  money 
so  converted,  loaned,  deposited,  withdrawn,  transferred,  or  applied,  and 
shall  be  fined  not  more  than  the  amount  embezzled,  or  imprisoned  not 
more  than  ten  years,  or  both."  » 


316  Federal  Criminal  Law  Procedure. 

§  131.  Failure  of  Treasurer  to  Safely  Keep  Public 
Moneys. — Section  88  of  the  new  Code  is  in  the  following 
words : 

"Sec.  88.  If  the  Treasurer  of  the  United  States,  or  any  assistant 
treasurer,  or  any  public  depository,  fails  safely  to  keep  all  moneys 
deposited  by  any  disbursing  officer  or  disbursing  agent,  as  well  as  all 
moneys  deposited  by  any  receiver,  collector,  or  other  person  having 
money  of  the  United  States,  he  shall  be  deemed  guilty  of  embezzlement 
of  the  moneys  not  so  safely  kept,  and  shall  be  fined  in  a  sum  equal  to 
the  amount  of  money  so  embezzled  and  imprisoned  not  more  than  ten 
years." 

§  132.  Custodians  of  Public  Money  Failing  to  Safely 
Keep,  Etc. — New  Section  89  reads  as  follows: 

"Sec.  89.  Every  officer  or  other  person  charged  by  any  Act  of 
Congress  with  the  safe-keeping  of  the  public  moneys,  who  shall  loan, 
use,  or  convert  to  his  own  use,  or  shall  deposit  in  any  bank  or  ex- 
change for  other  funds,  except  as  specially  allowed  by  law,  any  portion 
of  the  public  moneys  intrusted  to  him  for  safekeeping,  shall  be  guilty 
of  embezzlement  of  the  money  so  loaned,  used,  converted,  deposited, 
or  exchanged,  and  shall  be  fined  in  a  sum  equal  to  the  amount  of 
money  so  embezzled  and  imprisoned   not  more  than  ten  years." 

§  133.  Failure  of  Officer  to  Render  Accounts,  Etc. — 
New  Section  90  reads  as  follows: 

"Sec.  90.  Every  officer  or  agent  of  the  United  States  who,  having 
received  public  money  which  he  is  not  authorized  to  retain  as  salary, 
pay,  or  emolument,  fails  to  render  his  accounts  for  the  same  as  pro- 
vided by  law  shall  be  deemed  guilty  of  embezzlement,  and  shall  be 
fined  in  a  sum  equal  to  the  amount  of  money  embezzled  and  im- 
prisoned not  more  than  ten  years." 

§  134.  Failure  to  Deposit,  as  Required. — Section  91 
of  the  new  Code  reads  as  follows: 

"Sec.  91.  Whoever,  having  money  of  the  United  States  in  his  pos- 
session or  under  his  control,  shall  fail  to  deposit  it  with  the  Treas- 
urer, or  some  assistant  treasurer,  or  some  public  depository  of  the 
United  States,  when  required  so  to  do  by  the  Secretary  of  the  Treas- 
ury, or  the  head  of  any  other  proper  department,  or  by  the  account- 
ing officers  of  the  Treasury,  shall  be  deemed  guilty  of  embezzlement 
thereof,  and  shall  be  fined  in  a  sum  equal  to  the  amount  of  money 
embezzled  and  imprisoned  not  more  than  ten  years." 


Offenses  Relating  To  OiTiciAi.  Dm  311 

It  has  been  determined,  in  the  case  of  United  States  vs. 
Dimmick,  reported  in  112  Federal,  350,  and  affirmed  in 
Dimmick  vs.  United  States,  121  Federal,  638,  thai  to  con- 
stitute the  offense  of  failing  to  deposit,  as  required,  in 
these  sections,  it  is  not  necessary  that  a  person  having 
such  moneys  in  his  possession  should  have  been  "requir- 
ed" to  deposit  the  same  by  a  specific  order  directed  to  him 
which  he  failed  to  obey,  but  such  requirement  may  be 
made  by  a  general  rule  or  regulation  of  the  Treasury 
Department,  requiring  such  moneys  to  be  deposited  at 
stated  times,  and  a  wilful  failure  to  comply  with  such 
rule  is  within  the  statute. 

So  also,  it  seems  that  a  similar  general  rule  made  by 
the  Postmaster  General,  or  any  other  executive  officer, 
concerning  the  deposit  of  moneys  by  subordinates  in  thai 
particular  branch  of  the  Government,  would  likewise  be 
all  that  was  necessary  to  meet  the  requirement  of  tin- 
statute  under  the  word  "required." 

§  135.  Provisions  of  the  Five  Preceding-  Sections — 
How  Applied. — New  Section  92  reads  as  follows: 

"Sec.  92.  The  provisions  of  the  five  preceding  sections  shall  be 
construed  to  apply  to  all  persons  charged  with  the  safe-keeping, 
transfer,  or  disbursement  of  the  public  money,  whether  such  per- 
sons  be  indicted  as  receivers  or   depositaries   of  the   same." 

§  136.  Record  Evidence  of  Embezzlement.— Xew  Sec- 
tion 93  is  in  the  following  words: 

"Sec.  93.  Upon  trial  of  any  indictment  against  any  person  for 
embezzling  public  money  under  any  provision  of  the  six  preceding 
sections,  it  shall  be  sufficient  evidence,  prima  facie,  for  the  purpose 
of  showing  a  balance  against  such  person,  to  produce  a  transcript 
from  the  books  and  proceedings  of  the  Treasury,  as  required  in  civi! 
cases,  under  the  provisions  for  the  settlement  of  accounts  between  the 
United  States  and  receivers  of  public  money." 

§  137.  Prima  Facie  Evidence. — New  Section  94  is  in 
the  following  words: 

"Sec.  94.  The  refusal  of  any  person,  whether  in  or  out  of  office, 
charged  with  the  safe-keeping,  transfer,  or  disbursement  of  the  public 
money  to  pay  any  draft,  order,  or  warrant  drawn  upon  him  by  the 
proper  accounting  officer  of  the  Treasury,  for  any  public  money  in 
his  hands  belonging  to  the  United  States,  no  matter  in  what  capacity 


318  Federal  Criminal  Law  Procedure. 

the  same  may  have  been  received,  or  may  be  held,  or  to  transfer  or 
disburse  any  such  money,  promptly,  upon  the  legal  requirement  of 
any  authorized  officer,  shall  be  deemed,  upon  the  trial  of  any  in- 
dictment against  such  person  for  embezzlement,  prima  facie  evidence 
of   such    embezzlement." 

§  138.  Evidence  of  Conversion. — Section  95  of  the 
new  Code  is  in  the  following  words: 

"If  any  officer  charged  with  the  disbursement  of  the  public  moneys 
accepts,  receives,  or  transmits  to  the  Treasury  Department  to  be  al- 
lowed in  his  favor  any  receipt  or  voucher  from  a  creditor  of  the 
United  States  without  having  paid  to  such  creditor  in  such  funds  as 
the  officer  received  for  disbursement,  or  in  such  funds  as  he  may  be 
authorized  by  law  to  take  in  exchange,  the  full  amount  specified  in 
such  receipt  or  voucher,  every  such  act  is  an  act  of  conversion  by 
Sach  officer  to  his  own  use  of  the  amount  specified  in  such  receipt  or 
voucher." 

The  above  three  sections  are  general  statutes  that  ap- 
ply to  and  regulate  the  method  of  proof,  and  create  new 
rules  of  evidence  that  apply  to  Sections  87,  88,  89,  90  and 
91,  above  quoted. 

§  139.  Banker,  Etc,  Receiving  Deposit  from  Disburs- 
ing Officer. — Section  96  of  the  new  Code  is  in  the  follow- 
ing words: 

"Sec.  96.  Every  banker,  broker,  or  other  person  not  an  authorized 
depositary  of  public  moneys,  who  shall  knowingly  receive  from  any 
disbursing,  officer,  or  collector  of  internal  revenue,  or  other  agent  of 
the  United  States,  any  public  money  on  deposit,  or  by  way  of  loan  or 
accommodation,  with  or  without  interest,  or  otherwise  than  in  pay- 
ment of  a  debt  against  the  United  States,  or  shall  use,  transfer,  con- 
vert, appropriate,  or  apply  any  portion  of  the  public  money  for  any 
purpose  not  prescribed  by  law;  and  every  president,  cashier,  teller, 
director,  or  other  officer  of  any  bank  or  banking  association  who 
shall  violate  any  provision  of  this  section  is  guilty  of  embezzlement 
of  the  public  money  so  deposited,  loaned,  transferred,  used,  converted, 
appropriated,  or  applied,  and  shall  be  fine.d  not  more  than  the  amount 
embezzled,  or  imprisoned  not  more  than  ten  years,  or  both." 

See  Cook  County  National  Bank  vs.  United  States,  107 
U.  S.,  445,  27  Law  Ed.,  page  537,  which  discusses,  in  a 
general  way,  the  priority  right  of  the  United  States  as 
against  insolvents.  See  also  15  Opinions  of  Attorney 
General,  288. 


Offenses  Eelating  To  Official  Duti  es.  : :  1 ! 

Under  the  authority  of  United  States  vs.  Green  el  al, 
146  Federal,  778,  old  Section  5497,  all  the  terms  of  which 
are  included  in  the  statute  under  discussion,  extended 
the  crime  of  embezzlement  of  public  money  to  every  per- 
son who  used,  transferred,  converted,  appropriated,  or 
applied  any  portion  of  the  same  for  any  purpose  qo1  pi 
scribed  by  law. 

§  140.  Embezzlement  by  Internal  Revenue  Officers, 
Etc. — Section  97  of  the  new  Code  is  in  the  following 
words: 

"Sec.  97.  Any  officer  connected  with,  or  employed  in  the  Internal 
Revenue  Service  of  the  United  States,  and  any  assistant  of  such 
officer,  who  shall  embezzle  or  wrongfully  convert  to  his  own  use  any 
money  or  other  property  of  the  United  States,  and  any  officer  of  the 
United  States,  or  any  assistant  of  such  officer,  who  shall  embezzle 
or  wrongfully  convert  to  his  own  use  any  money  or  property  which 
may  have  come  into  his  possession  or  under  his  control  in  the  ex- 
ecution of  such  office  or  employment,  or  under  color  or  claim  of  author- 
ity as  such  officer  or  assistant,  whether  the  same  shall  be  the  money  or 
property  of  the  United  States  or  of  some  other  person  or  party,  shall, 
where  the  offense  is  not  otherwise  punishable  by  some  statute  of  the 
United  States,  be  fined  not  more  than  the  value  of  the  money  and 
property  thus  embezzled  or  converted,  or  imprisoned  not  more  than 
ten  years,  or  both." 

This  section  contains  a  part  of  what  was  originally  in 
Section  5497  of  the  old  Statutes,  as  does  Section  96,  above 
considered.  By  the  specific  terms  of  the  section,  an  em- 
bezzlement may  be  properly  laid  thereunder,  even  though 
the  money  or  property  so  embezzled  is  not  the  money  or 
property  of  the  United  States,  provided  that  such  money 
or  property  came  into  the  possession  or  control  of  the 
United  States  officer  by  reason  of  his  office,  or  under  color 
thereof,  or  under  claim  of  authority;  as,  for  instance, 
one  paying  to  a  Deputy  Collector  a  partial  paymenl  or 
installment  payment  on  a  license  not  yet  issued,  or  giving 
to  a  rural  route  carrier  money  to  purchase  a  money-order, 
which  remains  the  property  of  the  intended  purchaser. 
All  these,  and  many  other  offenses,  would  be  punishable 
under  this  statute. 

Sec.  140a.  Embezzlement,  etc.,  by  United  Stales  Offi- 
cers. 


320  Federal  Criminal  Law  Proceduee. 

Under  the  foregoing  section  a  clerk  of  the  United 
States  District  Court,  who  embezzles  may  be  convicted, 
U.  S.  vs.  Davis,  U.  S.  Sup.  Ct.  Apr.  1917. 

A  receiver  of  a  National  Bank  is  an  officer  of  the  Unit- 
ed States,  within  the  meaning  of  this  section  and  may 
be  prosecuted  for  embezzlement  of  the  funds  of  the  bank 
he  is  administering,  Wetzel  vs.  U.  S.,  274  F.  101. 

§  141.  Officer  Contracting  Beyond  Specific  Appro- 
priation.— Section  98  of  the  new  Code,  which  practically 
re-enacts  old  Section  5503,  and  the  substance  of  the 
amendment  thereto,  is  in  the  following  words: 

"Sec.  98.  Whoever,  being  an  officer  of  the  United  States,  shall 
knowingly  contract  for  the  erection,  repair,  or  furnishing  of  any 
public  building,  or  for  any  public  improvement,  to  pay  a  larger  amount 
than  the  specific  sum  appropriated  for  such  purpose,  shall  be  fined 
not  more  than  two  thousand  dollars  and  imprisoned  not  more  than 
two  years. ' ' 

§  142.  Officer  of  United  States  Court  Failing  to  De- 
posit Moneys,  Etc. — Section  99  of  the  new  Code,  which 
substantially  re-enacts  old  Section  5504,  is  in  the  follow- 
ing words: 

"Sec.  99.  Whoever,  being  a  clerk  or  other  officer  of  a  court  of 
the  United  States,  shall  fail  forthwith  to  deposit  any  money  belong- 
ing in  the  registry  of  the  court,  or  hereafter  paid  into  court  or  re- 
ceived by  the  officers  thereof,  with  the  Treasurer,  assistant  treasurer, 
or  a  designated  depositary  of  the  United  States,  in  the  name  and  to 
the  credit  of  such  court,  or  shall  retain  or  convert  to  his  own  use 
or  to  the  use  of  another  any  such  money,  is  guilty  of  embezzlement, 
and  shall  be  fined  not  more  than  the  amount  embezzled",  or  im- 
prisoned not  more  than  ten  years,  or  both;  but  nothing  herein  shall 
be  held  to  prevent  the  delivery  of  any  such  money  upon  security,  ac- 
cording to  agreement  of  parties,  under  the   direction   of  the   court." 

Some  civil  cases  that  merely  mention  old  Section  5504 
are  the  following:  Henry  vs.  Sowles,  28  Federal,  481; 
United  States  vs/Bixby,  10  Bis.,  238. 

§  143.  Receiving  Loan  or  Deposit  from  Officer  of 
Court. — Section  100  of  the  new  Code,  which  takes  the 
place  of  the  old  Statute  5505,  reads  as  follows: 

"Sec.  100.  Whoever  shall  knowingly  receive  from  a  clerk  or 
other   officer   of   a  court   of   the   United    States,   as   a   deposit   loan,   or 


Offenses  Relating  To  Official  Di  dies.  321 

otherwise,  any  money  belonging  in  the  registry  of  Buch  court,  is 
guilty  of  embezzlement,  and  shall  be  punished  as  prescribed  in  the 
preceeding   section." 

§  144.  Failure  to  Make  Returns  or  Reports.— Section 
101  of  the  new  Code  which  re-enacts  old  Section   L780, 

is  in  the  following  words: 

"Sec.  101.  Every  Officer  who  neglects  or  refuses  to  make  any 
return  or  report  which  he  is  required  to  make  at  stated  times  by 
any  Act  of  Congress  or  regulation  of  the  Department  of  the  Treas- 
ury, other  than  his  accounts,  within  the  time  prescribed  by  such  act 
or  regulation,  shall  be  fined  not  more  than  one  thousand  dollars." 

§  145.  Aiding  in  Trading  in  Obscene  Literature,  Etc. 
— Old  Section  1785,  which  is  to  he  regulated  by  the  de- 
cisions under  the  old  Section  3893  and  its  amendments, 
which  have  heretofore  been  treated  under  postal  crimes 
and  offenses,  is  replaced  by  Section  102  of  the  new  Cod<'. 
in  the  following  words: 

"Sec.  102.  Whoever,  being  an  officer,  agent,  or  employee  of  the 
Government  of  the  United  States  shall  knowingly  aid  or  abet  any 
person  engaged  in  violating  any  provision  of  law  prohibiting  im- 
porting, advertising,  dealing  in,  exhibiting,  or  sending  or  receiving 
by  mail,  obscene  or  indecent  publications  or  representations,  or 
means  for  preventing  conception  or  producing  abortion,  or  other 
article  of  indecent  or  immoral  use  or  tendency,  shall  be  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more  than  ten 
years,  or  both." 

§  146.  Collecting  and  Disbursing  Officers  Forbidden 
to  Trade  in  Public  Funds.— Old  Sections  1788  and  L789 
are  re-enacted  into  new  Section  103  in  the  following 
words: 

"Sec.  103.  Whoever,  being  an  officer  of  the  United  States  con 
cerned  in  the  collection  or  the  disbursement  of  the  revenues  tbere- 
of,  shall  carry  on  any  trade  or  business  in  the  funds  or  debts  of  the 
United  States,  or  of  any  State,  or  any  public  property  of  either, 
shall  be  fined  not  more  than  three  thousand  dollars,  or  imprisoned 
not  more  than  one  year,  or  both,  and  be  removed  from  office,  and  there- 
after be  incapable  of  holding  any  office  under  the   United    Stati 

§  147.  Judges,  Clerks,  Deputies,  Marshals,  and  At- 
torneys, and  their  Deputies  Forbidden  to  Purchase  Wit- 

21 


322  Federal  Criminal  Law  Procedure. 

ness  Fees,  Etc. — The  statute  contained  in  the  29  Statute 
at  Large,  595,  is  re-enacted  into  new  Section  104,  in  the 
following  words: 

"Sec.  104.  Whoever,  being  a  judge  clerk,  or  deputy  clerk  of  any 
court  of  the  United  States,  or  of  any  Territory  thereof,  or  a  United 
States  district  attorney,  assistant  attorney,  marshal,  deputy  marshal, 
commissioner,  or  other  person  holding  any  office,  or  employment,  or 
position  of  trust  or  profit  under  the  Government  of  the  United  States, 
shall,  either  directly  or  indirectly,  purchase  at  less  than  the  full 
face  value  thereof,  any  claim  against  the  United  States  for  the  fee, 
mileage,  or  expenses  of  any  witness,  juror,  deputy  marshal,  or  any 
other  officer  of  the  court  whatsoever,  shall  be  fined  not  more  than 
one  thousand   dollars." 

§  148.  Falsely  Certifying,  Etc.,  as  to  Record  of  Deeds. 
— Section  105  of  the  new  Code,  creates  a  new  offense,  in 
the  following  words: 

"Sec.  105.  Whoever,  being  an  officer  or  other  person  authorized 
by  any  law  of  the  United  States  to  record  a  conveyance  of  real 
property,  or  any  other  instrument  which  by  law  may  be  recorded, 
shall  knowingly  certify  falsely  that  such  conveyance  or  instrument 
has  or  has  not  been  recorded,  shall  be  fined  not  more  than  one  thou- 
sand dollars,  or  imprisoned  not  more  than  seven  years,  or  both." 

§  149.  Other  False  Certificates.— Section  106  of  the 
new  Code  creates  a  new  offense  in  the  following  words: 

"Sec.  106.  Whoever,  being  a  public  officer  or  other  person  author- 
ized by  any  law  of  the  United  States  to  make  or  give  a  certificate 
or  other  writing,  shall  knowingly  make  and  deliver  as  true  such 
a  certificate  or  writing,  containing  any  statement  which  he  knows 
to  be  false,  in  a  case  where  the  punishment  thereof  is  not  elsewhere 
expressly  provided  by  law,  shall  be  fined  not  more  than  five  hundred 
dollars,  or  imprisoned  not  more  than  one  year,  or  both." 

§  150.  Inspector  of  Steamboats  Receiving  Illegal 
Fees. — Section  5482  of  the  old  Statutes  is  re-enacted  in 
Section  107  of  the  new  Statutes  in  the  following  words: 

"Every  inspector  of  steamboats  who,  upon  any  pretense,  receives 
any  fee  or  reward  for  his  services,  except  what  is  allowed  to  him 
by  law,  shall  forfeit  his  office,  and  be  fined  not  more  than  five  hundred 
dollars,  or  imprisoned  not  more  than  six  months,  or  both." 

§  151.  Pension  Agent  Taking  Fee,  Etc. — Section  108, 
which  displaces  old  Section  5487,  reads  as  follows: 


Offenses  Relating  To  Official  Duties. 

"Every    pension    agent,    or    other    person    employed    or    appointed 
by  him,  who  takes,  receives,  or  demands  any  fee  or  reward  from  ai 
pensioner    for    any    service    in    connection    with    the    payment    of    his 
pension,  shall  be  fined  not  more  than  five  hundred  dollars." 

In  the  cases  of  United  States  vs.  Kessel,  62  Federal, 
page  57,  and  United  States  vs.  Van  Lemon.  '2  Federal, 
62,  successful  prosecutions  were  laid  by  the  Governmenl 
against  members  of  the  Board  of  Examining  Snrgeons 
for  receiving  and  asking  outside  compensation  and  gra 
tuity  for  services  rendered  and  to  be  rendered,  respecting 
certain  certificates  from  the  board  of  Surgeons.    An  in- 
dictment in  the  first  case,  which  charged  that  the  defend- 
ant, a  member  of  a  Board  of  Surgeons,  did  unlawfully 
ask  "a  gratuity,  the  nature  of  which  is  unknown,"  with 
intent  to  have  his  official  action  influenced,  was  held  to 
be  had,  in  that  it  failed  to  sufficiently  inform  the  defend- 
ant of  what  he  was  to  meet.     These  two  decisions  held 
that  a  member  of  a  Board  of  Examining  Surgeons,  ap- 
pointed by  the  Commissioner  of  Pensions,  though  not  an 
officer  of  the  United  States,  was  a  person  acting  for,  or 
in  behalf  of,  the  United  States,  and  in  an  official  capacity, 
and  under  authority  of  an  office  of  the  Government,  and 
distinguished  the  case  of  the  United  States  vs.  Germaine, 
99  U.  S.,  508. 

§  152.  Officer  not  to  Be  Interested  in  Claims  Against 
United  States. — Section  109  of  the  new  Code  is  substan- 
tially in  the  words  of  the  old  Statute  5498,  and  reads  as 
follows: 

"Sec.    109.     Whoever,   being  an   officer   of   the   United    States,   or   a 
person    holding    any    place    of    trust    or    profit,    or    discharging    any 
official  function  under,  or  in  connection  with,  any  Executive  Depart- 
ment of  the  Government  of  the  United  States,  or  under  the  Senate  or 
House  of  Representatives  of  the  United  States,  shall  act  as  an  agent 
or    attorney    for    prosecuting    any    claim    against    the    United    Sta1 
or    in    any   manner,    or   by   any   means,    otherwise    than    in    dischai 
of  his  proper  official  duties,  shall  aid  or  assist  in  the  prosecution  or 
support  of  any  such  claim,  or  receive  any  gratuity,  or  any   share  of 
or  interest  in  any  claim  from  any  claimant  against  the  United  st 
with  intent  to  aid  or  assist,  or  in  consideration  of  having  aided  or  as- 
sisted in  the  prosecution  of  such  claim,  shall  be  fined  not   more  than 
five  thousand  dollars,  or  imprisoned  not  more  than  one  year,  or  both.' 


324  Federal  Criminal  Law  Procedure. 

To  this  statute,  as  well  as  most  of  the  others  that  we  are 
considering  in  this  Chapter,  the  thought  is  applicable 
that  a  political  office  is  merely  a  trust,  which  is  to  be  con- 
ferred upon  whatever  conditions  the  Government  chooses 
to  impose.  If  the  conditions  are  unacceptable  to  the 
office-holder,  he  is  under  no  obligation  to  take  the  office, 
and  he  has  no  Constitutional  or  other  right  to  require 
the  conditions  of  trusts  he  accepts  to  be  subsequently  al- 
tered or  removed.  In  United  States  vs.  Curtis,  12  Fed- 
eral, 824,  the  Court,  in  expressing  this  thought,  said: 

"No  citizen  is  required  to  hold  a  public  office,  and  if  he  is  unwilling 
to  do  so,  upon  such  conditions  as  are  prescribed  by  that  Department 
of, the  Government  which  creates  the  office,  fixes  its  tenure  and  inci- 
dents, it  is  his  duty  to  resign." 

The  Curtis  case  was  an  indictment,  in  1882,  against  a 
Federal  employee  for  soliciting  and  receiving  monev 
from  other  Federal  employees,  to  be  used  by  the  Republi- 
can State  Committee.  The  indictment  was  found  under 
Section  6  of  the  Act  of  August  15,  1876,  First  Supple- 
ment, 245,  19  Statute-at-Large,  169.  The  defendant  was 
convicted,  and  thereafter  sought,  by  writ  of  habeas  cor- 
pus from  the  Supreme  Court  of  the  United  States,  his 
discharge;  but  the  Supreme  Court,  through  Chief  Jus- 
tice Waite,  in  106  U.  S.,  371,  ex  parte  Curtis;  Lawyers' 
Co-Operative  Edition,  Book  27,  page  232,  refused  to  dis- 
charge the  petitioner,  and  in  effect,  therefore,  confirmed 
the  conviction. 

§  153.  Member  of  Congress,  Etc.,  Soliciting  or  Ac- 
cepting Bribe. — Sections  1781,  5500,  and  5502  have  con- 
tributed to  new  Section  110,  which  is  in  the  following 
words: 

"Sec.  110.  Whoever,  being  elected  or  appointed  a  Member  of  or 
Delegate  to  Congress,  or  a  Resident  Commissioner,  shall,  after  his 
election  or  appointment,  and  either  before  or  after  he  is  qualified, 
and  during  his  continuance  in  office,  directly  or  indirectly,  ask,  accept 
receive,  or  agree  to  receive,  any  money,  property,  or  other  valuable 
consideration,  or  any  promise,  contract,  undertaking,  obligation,  gra- 
tuity, or  security    for  the  payment  of  money,  or  for  the  delivery  or 


Offenses  Relating  To  Official  Duties.         325 

conveyance  of  anything  of  value  to  him,  or  to  any  person  with  his 
consent,  connivance,  or  concurrence,  for  his  attention  to,  or  services, 
or  with  the  intent  to  have  his  action,  vote,  or  decision  influenced  on 
any  question,  matter,  cause,  or  proceeding,  which  may  at  any  time  he 
pending  in  either  house  of  congress  or  before  any  committee  thereof, 
of  which  by  law  or  under  the  constitution  may  be  brought  before  him 
in  his  official  capacity,  or  in  his  place  as  such  member,  delegate,  or 
resident  commissioner,  shall  be  fined  not  more  than  three  times  the 
amount  asked,  accepted,  or  received,  and  imprisoned  not  more  than 
three  years;  and  shall,  moreover,  forfeit  his  office  or  place,  and 
thereafter  he  forever  disqualified  from  holding  any  office  of  honor, 
trust,  or  profit,  under  the  Government  of  the  United  States." 

§  154.  Offering,  Etc.,  Member  of  Congress  Bribe.— 
New  Section  111  contains  the  meat  of  old  Section  5450, 
and  is  in  the  following  words: 

"Sec.  11.  Whoever  shall  promise,  offer,  or  give,  or  cause  to  be 
promised,  4  <Tered,  or  given,  any  money  or  other  thing  of  value,  or 
shall  make  or  tender  any  contract,  undertaking,  obligation,  gratuity, 
or  security  for  the  payment  of  money  or  for  the  delivery  or  convey- 
ance of  anything  of  value,  to  any  Member  of  either  House  of  Congress, 
or  Delegate  to  Congress,  or  Resident  Commissioner,  after  his  election 
or  appointment,  and  either  before  or  after  he  has  qualified,  and  during 
his  continuance  in  office,  or  to  any  person  with  his  consent,  connivance, 
or  concurrence,  with  intent  to  influence  his  action,  vote,  or  decision,  ou 
any  question,  matter,  cause,  or  proceeding  which  may  at  any  time  be 
pending  in  either  House  of  Congress,  or  before  any  committee  there- 
of, or  which  by  law  or  under  the  Constitution  may  be  brought  before 
him  in  his  official  capacity  or  in  his  place  as  such  member,  delegate, 
or  resident  commissioner,  shall  be  fined  not  more  than  three  times  the 
amount  of  money  or  value  of  the  thing  so  promised,  offered,  given, 
made,  or  tendered,  and  imprisoned  not  more  than  three  years." 

§  155.  Member  of  Congress  Taking  Consideration  for 
Procuring  Contracts,  Offices,  Etc.;  Offering  Member  Con- 
sideration, Etc. — New  Section  110,  quoted  above,  togeth- 
er with  new  Section  112,  which  is  in  the  following  word-: 

"Sec.  112.  Whoever,  being  elected  or  appointed  a  Member  of  or 
Delegate  to  Congress,  or  a  Resident  Commissioner,  shall  after  his 
election  or  appointment,  and  either  before  or  after  he  has  qualified 
and'during  his  continuance  in  office,  or  being  an  officer  or  agent  of 
the  United  States,  shall  directly  or  indirectly  take,  receive,  or  agree 
to  receive,  from  any  person,  any  money,  property,  or  other  valuable 
consideration  whatever,  for  procuring  or  aiding  to  procure  any  con- 
tract, appointive  office,  or  place  to  any  person  whomsoever;   or  who- 


326  Federal  Criminal  Law  Procedure. 

ever,  directly  or  indirectly  shall  offer,  or  agree  to  give,  or  shall  give, 
or  bestow,  any  money,  property,  or  other  valuable  consideration 
whatever,  for  the  procuring,  or  aiding  to  procure,  any  such  contract,  ap- 
pointive office,  or  place,  shall  be  fined  not  more  than  ten  thousand 
dollars  and  imprisoned  not  more  than  two  years;  and  shall  more- 
over, be  disqualified  from  holding  any  office  of  honor,  profit,  or  trust 
under  the  Government  of  the  United  States.  Any  such  contract  or 
agreement  may,  at  the  option  of  the  President,  be  declared  void," 

enlarge  upon  the  provisions  of  old  Statute  1781. 

Upon  the  question  of  policy,  the  Curtis  case,  cited  supra 
may  be  considered  as  an  authority  under  this  section.  In 
United  States  vs.  Driggs,  125  Federal,  520,  Congressman 
Driggs  was  indicted  for  assisting  a  contractor  by  the 
name  of  Miller  in  making  a  contract  with  the  Govern- 
ment for  certain  automatic  cash  registers,  for  a  consid- 
eration of  twelve  thousand  dollars.  In  the  case  of  United 
States  vs.  Dietrich,  126  Federal,  676,  which  grew  out  of 
an  indictment  against  Senator  Dietrich,  of  Nebraska,  for 
an  alleged  agreement  to  procure,  or  aid  in  the  securing  of, 
a  post-office,  for  one  Fisher,  the  Court  held,  of  course, 
that  it  was  necessary  to  allege  in  the  indictment  the  elec- 
tion, qualification,  and  oath  of  Dietrich  as  such  Senator, 
and  for  the  facts  to  show  that  the  offense  was  committed 
while  he  was  such  officer;  and  there  being  an  interim 
before  his  actual  qualification  to  such  office,  during  which 
time  he  made  the  contract  for  the  disposition  of  the  post- 
office,  if  he  made  it  at  all,  the  Court  determined  that  no 
offense  was  committed.    In  that  opinion,  the  Court  said: 

"The  defendant  was  not  admitted  to  a  seat  in  the  Senate  and  did 
not  enter  upon  the  discharge  of  the  duties  of  that  office,  until  December 
2,  1901,  not  until  that  date  did  the  Senate  consider  or  act  upon  his 
election,  credentials,  and  qualifications.  Until  then,  it  was  not  known, 
and  could  not  have  been,  in  the  absence  of  an  earlier  session  of  the 
Senate,  whether  his  election,  credentials,  and  qualifications,  would  be 
deemed  by  the  Senate,  the  sole  and  exclusive  judge,  to  be  such  as 
to  entitle  him  to  membership  in  that  body.  Immediately  following 
the  favorable  action  of  the  Senate  upon  his  election,  credentials,  and 
qualifications,  the  defendant  took  the  oath  of  office  as  a  Senator, 
which  was  an  assumption  of  the  duties  of  that  office;  but  until  then 
he  had  not  accepted  the  office,  and  was  not  obligated  to  its  acceptance. 
Until  then,  it  was  optional  with  him  to  accept  or  decline;  and  if, 
on  December  2,  1901,  he  had  exercised  that  office  by  declining  instead 


Offenses  Relating  To  Official  Duties.  327 

of  accepting,   he   would   not   have  been   a   Senator   at   all,   under   the 
election  of  March  28,  1901." 

It  is  quite  true  that  the  Common  Law  made  it  an  of- 
fense for  one  not  to  accept  an  office  to  which  he  was 
elected,  but  no  such  jurisdiction  is  recognized  by  the 
Federal  Courts.  If  it  he  true,  therefore,  that  Dietrich 
agreed  to  sell  the  office  between  the  date  of  his  election, 
in  March,  and  the  date  of  his  qualification,  in  December, 
he  committed  no  offense  under  the  Statute  under  discus- 
sion. The  case  of  United  States  vs.  Burton,  reported  in 
131  Federal,  552,  grew  out  of  an  alleged  practice  by  Sena- 
tor Burton  before  the  Post-office  Department  of  the  Unit- 
ed States,  with  reference  to  a  certain  fraud  order  that 
the  Postmaster  General  had  issued.  The  conviction  that 
resulted  upon  that  case  was  finally  reversed,  Burton  vs. 
United  States,  196  U.  S.,  283,  but  upon  a  retrial  another 
conviction  was  affirmed,  United  States  vs.  Burton,  202  U. 
S.,  344;  50  Law  Ed.,  1057.  The  Court  held,  in  the  last 
writ  of  error,  that  a  fraud  order  inquiry  pending  before 
the  Post-office  Department  is  a  proceeding  in  which  the 
United  States,  although  having  no  direct  money  or  pe- 
cuniary interest  in  the  result,  is  directlv  or  indirectlv  in- 
terested  within  the  meaning  of  Section  1782,  making  it  a 
misdemeanor  for  a  United  States  Senator  to  receive  or 
agree  to  receive  compensation  for  services  rendered  be- 
fore any  Department,  in  relation  to  any  proceeding  in 
which  the  United  States  is  so  interested. 

The  Court  also  in  that  case  said  that  the  agreement  to 
receive,  and  the  receipt  of,  the  forbidden  compensation 
are  made  two  separate  and  distinct  offenses  under  Sec- 
tion 1782. 

In  the  case  of  McGregor  vs.  United  States,  134  U.  S., 
188,  the  Circuit  Court  of  Appeals  for  the  Fourth  Circuit 
affirmed  a  conviction  of  the  defendants,  who  were  clerks 
in  the  Post-office  Department,  under  Section  1781  and 
1782,  for  conspiring  with  a  dealer  in  leather  goods  for 
the  sale  of  mail  pouches  to  the  Federal  Government. 

This  case  discusses  the  introduction  of  evidence  before 
a  grand  jury,  the  joinder  of  various  counts,  and  the  suffi- 
ciency in  general  of  a  bill  alleging  the  elements  of  such 


326  Federal  Criminal  Law  Procedure. 

ever,  directly  or  indirectly  shall  offer,  or  agree  to  give,  or  shall  give, 
or  bestow,  any  money,  property,  or  other  valuable  consideration 
whatever,  for  the  procuring,  or  aiding  to  procure,  any  such  contract,  ap- 
pointive office,  or  place,  shall  be  fined  not  more  than  ten  thousand 
dollars  and  imprisoned  not  more  than  two  years;  and  shall  more- 
over, be  disqualified  from  holding  any  office  of  honor,  profit,  or  trust 
under  the  Government  of  the  United  States.  Any  such  contract  or 
agreement  may,  at  the  option  of  the  President,  be  declared  void," 

enlarge  upon  the  provisions  of  old  Statute  1781. 

Upon  the  question  of  policy,  the  Curtis  case,  cited  supra 
may  be  considered  as  an  authority  under  this  section.  In 
United  States  vs.  Driggs,  125  Federal,  520,  Congressman 
Driggs  was  indicted  for  assisting  a  contractor  by  the 
name  of  Miller  in  making  a  contract  with  the  Govern- 
ment for  certain  automatic  cash  registers,  for  a  consid- 
eration of  twelve  thousand  dollars.  In  the  case  of  United 
States  vs.  Dietrich,  126  Federal,  676,  which  grew  out  of 
an  indictment  against  Senator  Dietrich,  of  Nebraska,  for 
an  alleged  agreement  to  procure,  or  aid  in  the  securing  of, 
a  post-office,  for  one  Fisher,  the  Court  held,  of  course, 
that  it  was  necessary  to  allege  in  the  indictment  the  elec- 
tion, qualification,  and  oath  of  Dietrich  as  such  Senator, 
and  for  the  facts  to  show  that  the  offense  was  committed 
while  he  was  such  officer;  and  there  being  an  interim 
before  his  actual  qualification  to  such  office,  during  which 
time  he  made  the  contract  for  the  disposition  of  the  post- 
office,  if  he  made  it  at  all,  the  Court  determined  that  no 
offense  was  committed.    In  that  opinion,  the  Court  said: 

"The  defendant  was  not  admitted  to  a  seat  in  the  Senate  and  did 
not  enter  upon  the  discharge  of  the  duties  of  that  office,  until  December 
2,  1901,  not  until  that  date  did  the  Senate  consider  or  act  upon  his 
election,  credentials,  and  qualifications.  Until  then,  it  was  not  known, 
and  could  not  have  been,  in  the  absence  of  an  earlier  session  of  the 
Senate,  whether  his  election,  credentials,  and  qualifications,  would  be 
deemed  by  the  Senate,  the  sole  and  exclusive  judge,  to  be  such  as 
to  entitle  him  to  membership  in  that  body.  Immediately  following 
the  favorable  action  of  the  Senate  upon  his  election,  credentials,  and 
qualifications,  the  defendant  took  the  oath  of  office  as  a  Senator, 
which  was  an  assumption  of  the  duties  of  that  office;  but  until  then 
he  had  not  accepted  the  office,  and  was  not  obligated  to  its  acceptance. 
Until  then,  it  was  optional  with  him  to  accept  or  decline;  and  if, 
on  December  2,  1901,  he  had  exercised  that  office  by  declining  instead 


Offenses  Relating  To  Official  Duties.  327 

of   accepting,    he   would   not   have   been   a    Senator    at   all,   under   the 
election  of  March  28,  1901." 

It  is  quite  true  that  the  Common  Law  made  it  an  of- 
fense for  one  not  to  accept  an  office  to  which  lie  was 
elected,  but  no  such  jurisdiction  is  recognized  by  the 
Federal  Courts.  If  it  be  true,  therefore,  that  Dietrich 
agreed  to  sell  the  office  between  the  date  of  his  election, 
in  March,  and  the  date  of  his  qualification,  in  December, 
he  committed  no  offense  under  the  Statute  under  discus- 
sion. The  case  of  United  States  vs.  Burton,  reported  in 
131  Federal,  552,  grew  out  of  an  alleged  practice  by  Sena- 
tor Burton  before  the  Post-office  Department  of  the  Unit- 
ed States,  with  reference  to  a  certain  fraud  order  that 
the  Postmaster  General  had  issued.  The  conviction  that 
resulted  upon  that  case  was  finally  reversed,  Burton  vs. 
United  States,  196  U.  S.,  283,  but  upon  a  retrial  another 
conviction  was  affirmed,  United  States  vs.  Burton,  202  IT. 
S.,  344;  50  Law  Ed.,  1057.  The  Court  held,  in  the  last 
writ  of  error,  that  a  fraud  order  inquiry  pending  before 
the  Post-office  Department  is  a  proceeding  in  which  the 
United  States,  although  having  no  direct  money  or  pe- 
cuniary interest  in  the  result,  is  directly  or  indirectly  in- 
terested within  the  meaning  of  Section  1782,  making  it  a 
misdemeanor  for  a  United  States  Senator  to  receive  or 
agree  to  receive  compensation  for  services  rendered  be- 
fore any  Department,  in  relation  to  any  proceeding  in 
which  the  United  States  is  so  interested. 

The  Court  also  in  that  case  said  that  the  agreement  to 
receive,  and  the  receipt  of,  the  forbidden  compensation 
are  made  two  separate  and  distinct  offenses  under  Sec- 
tion 1782. 

In  the  case  of  McGregor  vs.  United  States,  134  U.  S., 
188,  the  Circuit  Court  of  Appeals  for  the  Fourth  Circuit 
affirmed  a  conviction  of  the  defendants,  who  were  clerks 
in  the  Post-office  Department,  under  Section  1781  and 
1782,  for  conspiring  with  a  dealer  in  leather  goods  for 
the  sale  of  mail  pouches  to  the  Federal  Government. 

This  case  discusses  the  introduction  of  evidence  before 
a  grand  jury,  the  joinder  of  various  counts,  and  the  suffi- 
ciency in  general  of  a  bill  alleging  the  elements  of  such 


^„ 


328  Federal  Criminal  Law  Procedure. 

an  offense.  The  Court  refused  to  revise  the  judgment  of 
the  grand  jury  stating  that, 

"It  is  doubtless  true  that  grand  juries  frequently  consider  testimony 
that  would  be  held  inadmissible  by  a  trial  court,  for  such  juries  are 
not  usually  well  informed  concerning  the  rules  of  evidence,  nor  the 
rights  and   privileges  of  the  parties   whose   alleged   offenses   they   are 

examining    into In    cases    like    this,    where    the    record    discloses 

that  many  witnesses  were  examined,  and  much  documentary  evidence 
considered  by  the  grand  jury,  it  is  quite  apparent  that  it  would  be 
subversive  of  our  criminal  procedure  and  destructive  of  the  rules  formu- 
lated to  promote  the  due  administration  of  justice,  to  establish  a 
practice  under  which  indictments  might  be  quashed,  because  of  a  con- 
sideration by  the  grand  jury  of  the  improper  testimony  given  by  one 
witness  among  many,  or  the  reading  by  such  jury  of  a  statement 
irregularly  submitted  to  it,  which  may  likely  have  had  but  little  in- 
fluence in  the  conclusion  reached  by  the  jury." 

In  other  words,  the  Court  said,  later  on,  that  even 
though  evidence  might  have  been  improperly  considered 
by  the  grand  jury,  that  the  Court  would  not  say  that  the 
jury  did  not,  nevertheless,  have  before  it  sufficient  of 
legal  and  pertinent  testimony  to  warrant  the  returning 
of  the  indictment,  and  cites  cases  in  support. 

In  United  States  vs.  Booth,  148  Federal,  112,  will  be 
found  a  complete  copy  of  an  indictment  under  Section 
1782,  which  was  approved  by  the  Court.  In  that  case,  a 
Receiver  of  the  Land  Department  of  the  United  States 
was  held  to  commit  an  offense  against  the  statute  under 
discussion,  when  he  gave  advance  information  respecting 
the  lands,  for  which  advance  information  he  received 
compensation,  and  the  Court  held  that  the  United  States 
has  a  direct  interest,  within  the  meaning  of  the  section, 
in  all  public  lands,  and  in  the  right  of  entry  or  purchase 
thereof,  through  proceedings  to  be  had  at  any  of  its  land 
offices.  Under  the  reasoning  of  this  last  case,  any  com- 
pensation whatever  is  construed  to  be  a  violation  of  the 
statute.  It  will  be  remembered,  however,  that  the  dis- 
tinction drawn  in  the  Dietrich  case,  with  reference  to 
election  and  qualification,  can  never  arise  under  new  Sec- 
tions 112  and  113,  for  the  reason  that  those  sections  ex- 
pressly provide  either  before  or  after  qualification. 


Offenses  Relating  To  Official  Din  329 

§  156.  Member  of  Congress  Taking  Compensation  in 
Matters  to  Which  the  United  States  is  a  Party.— New 

Section  113,  which  is  closely  akin  to  112,  just  discussed, 
and  which  re-enacts  the  salient  features  of  old  Section 
1782,  and  under  which  the  citations  and  suggestions  made 
with  reference  to  112  are  also  applicable,  is  in  the  follow- 
ing words: 

"Sec.  113.  Whoever,  being  elected  or  appointed  a  Senator,  Mem- 
ber of  or  Delegate  to  Congress,  or  a  Resident  Commissioner,  shal, 
after  his  election  or  appointment  and  either  before  or  after  he  has 
qualified,  and  during  his  continuance  in  office,  or  being  the  head  of 
a  department,  or  other  officer  or  clerk  in  the  employ  of  the  United 
States,  shall,  directly  or  indirectly,  receive,  or  agree  to  receive,  any 
compensation  whatever,  for  any  services  rendered  or  to  be  rendered 
to  any  person,  either  by  himself  or  another,  in  relation  to  any  pro- 
ceeding, contract,  claim,  controversy,  charge,  accusation,  arrest,  or 
other  matter  or  thing  in  which  the  United  States  is  a  party  or  direct- 
ly or  indirectly  interested,  before  any  department,  court-martial, 
bureau,  officer,  or  any  civil,  military,  or  naval  commission  whatever, 
shall  be  fined  not  more  than  ten  thousand  dollars  and  imprisoned  not 
more  than  two  years,  and  shall,  moreover,  thereafter  be  incapable  of 
holding  any  office  of  honor,  trust,  or  profit  under  the  Government  of 
the  United  States." 

§  157.  Member  of  Congress  Not  to  be  Interested  in 
Contract. — Sections  109,  110,  111,  112,  and  113,  provide, 
in  various  ways,  for  the  conservation  of  official  fidelity. 
To  these,  has  been  added  new  Section  114,  which  takes 
the  place  of  old  Section  3739,  and  which  is  in  the  follow- 
ing- words: 


i& 


"Sec.  114.  Whoever,  being  elected  or  appointed  a  Member  of  or 
Delegate  to  Congress,  or  a  resident  Commissioner,  shall,  after  his 
election  or  appointment  and  either  before  or  after  he  is  qualified. 
and  during  his  continuance  in  office,  directly  or  indirectly,  himself, 
or  by  any  other  person  in  trust  for  him,  or  for  his  use  or  benefit,  or  en 
his^account,  undertake,  execute,  hold,  or  enjoy,  in  whole  or  in  part, 
any  contract  or  agreement  made  or  entered  into  in  behalf  of  the 
United  States  by  any  officer  or  person  authorized  to  make  contracts 
on  its  behalf,  shall  be  fined  not  more  than  three  thousand  dollars.  All 
contracts  or  agreements  made  in  violation  of  this  section  shall  be  void; 
and  whenever  any  sum  of  money  is  advanced  by  the  United  States. 
in  consideration  of  any  such  contract  or  agreement  is  shall  forthwith 
be  repaid;  and  in  case  of  failure  or  refusal  to  pay  the  same  when 
demanded  by  the  proper  officer  of  the  Department  under  whose  author- 


330  Federal  Criminal  Law  Procedure. 

ity  such  contract  or  agreement  shall  have  been  made  or  entered  into, 
suit  shall  at  once  be  brought  against  the  person  so  failing  or  refusing 
and  his  sureties,  for  the  recovery  of  the  money  so  advanced." 

The  case  of  the  United  States  vs.  Dietrich,  126  Fed- 
eral, 671,  cited  supra  under  112  and  113,  may  be  read 
with  interest  by  those  seeking  light  upon  the  instant  stat- 
ute; also  Second  Attorney's  General  Opinion,  697,  15 
Attorney's  General  Opinion,  280.  This  statute,  it  will  be 
noticed,  is  directed  against  Members  of  Congress  being 
interested  in  contracts  with  the  Government,  whatever 
such  interest  may  be,  whether  direct  or  indirect,  and 
whether  before  qualification  or  after  qualification,  which 
meets,  as  heretofore  observed,  the  objections  that  were 
raised  by  the  Court  in  the  Dietrich  case,  to  a  successful 
prosecution. 

§  158.  Officer  Making  Contract  with  Member  of  Con- 
gress.— Old  Section  3742  becomes  new  Section  115,  which 
is  in  the  following  words: 

"Sec.  115.  Whoever,  being  an  officer,  of  the  United  States,  shall  on  be- 
half of  the  United  States,  directly  or  indirectly  make  or  enter  into 
any  contract,  bargain,  or  agreement,  in  writing  or  otherwise,  with 
any  Member  of  or  Delegate  to  Congress,  or  any  Resident  Commis- 
sioner, after  his  election  or  appointment  as  such  member,  delegate, 
or  resident  commissioner,  and  either  before  or  after  he  has  qualified, 
and  during  his  continuance  in  office,  shall  be  fined  not  more  than 
three   thousand   dollars." 

This  section,  as  the  other  sections  of  the  new  Code  bear- 
ing upon  this  phase  of  official  wrong,  is  so  worded  as  to 
punish  the  offender,  whether  before  or  after  his  quali- 
fication to  office. 

§  159.  Contracts  to  Which  the  Two  Preceding  Sec- 
tions Do  Not  Apply. — By  Section  116  of  the  new  Code, 
which  was  Section  3740  of  the  old  Code,  the  two  preced- 
ing sections — that  is,  Sections  114  and  115 — do  not  apply 
to  certain  contracts,  as  is  shown  by  the  following  words: 

"Sec.  llfi.  Nothing  contained  in  the  two  preceding  sections  shall 
extend,  or  be  construed  to  extend,  to  any  contract  of  agreement  made 
or  entered  into,  or  accepted,  by  any  incorporated  company,  where 
such  contract  or  agreement  is  made  for  the  general  benefit  of  such 
incorporation   or   company;     nor   to   the  purchase   or   sale   of   bills  of 


Offenses  Relating  To  Official  Duties.  331 

exchange  or  other  property  by  any  Member  of  or  Delegate  to  Congress, 
or  Resident  Commissioner,  where  the  same  are  ready  for  delivery. 
and  payment  therefor  is  made  at  the  time  of  making  or  entering 
into  the  contract  or  agreement." 

§  160.  United  States  Officer  Accepting  Bribe.— In  the 
discussion  of  Section  110,  supra,  cases  were  cited  and 
suggestions  were  made  concerning  old  Sections  5501  and 
5502.  These  two  sections  are  broadly  re-enacted  in  new 
Section  117,  which  is  in  the  following  words: 

"Whoever,  being  an  officer  of  the  United  States,  or  a  person  acting 
for  or  on  behalf  of  the  United  States,  in  any  official  capacity,  under 
or  by  virtue  of  the  authority  of  any  department  or  office  of  the  Gov- 
ernment thereof;  or  whoever,  being  an  officer  or  person  acting  for 
or  on  behalf  of  either  House  of  Congress,  or  of  any  committee  of 
either  House,  or  of  both  Houses,  shall  ask,  accept,  or  receive  any  secu- 
rity for  the  payment  of  money,  or  for  the  delivery  or  conveyance  of 
anything  of  value  with  intent  to  have  his  decision  or  action  on  any 
question,  matter,  cause,  or  proceeding  which  may  at  any  time  be 
pending,  or  which  may  by  law  be  brought  before  him  in  his  offic.al 
capacity,  or  in  his  place  of  trust  or  profit,  influenced  thereby,  shall 
be  fined  not  more  than  three  times  the  amount  of  money  or  value 
of  the  thing  so  asked,  accepted,  or  received,  and  imprisoned  not  more 
than  three  years,  and  shall,  moreover,  forfeit  his  office  or  place  and 
thereafter  be  forever  disqualified  from  holding  any  office  of  honor, 
trust,  or  profit  under  the  Government  of  the  United  States." 

The  cases  of  the  United  States  vs.  Kissel,  62  Federal, 
57,  and  United  States  vs.  Van  Lauven,  62  Federal,  62, 
heretofore  discussed  under  Section  110,  are  authorities 
under  this  section.  The  statute  is  so  broad  that  it  covers" 
not  only  one  who  is  an  officer  of  the  United  States,  but 
any  person  acting  for  or  on  behalf  of  the  United  States 
in  any  official  capacity. 

The  case  of  United  States  vs.  Boyer,  85  Federal,  425, 
correctly,  it  seems,  announces  a  doctrine  that  would  be 
equally  applicable  to  the  new  Section:  that  is,  that 
though  one  be  a  United  States  officer,  if  he  be  attempting 
to  perform  a  function  which  under  the  laws  and  limi- 
tations of  the  United  States,  he  is  not  entitled  to  perform, 
even  though  he  may  think  that  he  has  such  duty,  and 
even  though  the  person  offer  him  a  gratuity  not  to  per- 
form such  duty  may  think  that  he  has  a  right  to  per- 


332  Federal  Criminal  Law  Procedure. 

form  it,  yet  he  would  not  be  guilty  under  the  section,  for 
the  reason  that  he  was  acting  outside  of  his  authority. 
In  the  Boyer  case,  an  Inspector  for  the  Agriculture  De- 
partment of  the  United  States  was  indicted  for  receiving 
money  from  the  packing  house  to  which  he  was  assigned, 
as  an  Inspector  of  the  Bureau  of  Animal  Industry.  The 
point  was  raised  that  Congress  did  not  have  the  power, 
under  the  Constitution,  to  send  an  inspector  into  a  pack- 
ing house  located  within  a  State,  and  impose  upon  him 
the  duties  set  out  in  the  indictment.  The  Court  held  that 
the  facts  set  out  in  the  indictment  did  not  constitute  an 
offense  against  the  United  States,  for  the  reason  that  it 
was  intended  to  induce  him  not  to  do  a  thing  which  no 
valid  law  of  Congress  imposed  upon  him  to  do. 

In  the  case  of  United  States  vs.  Ingham,  97  Federal, 
935,  which  was  a  prosecution  under  Section  5451  of  the 
old  Statutes,  which  is  closely  akin  to  the  one  under  dis- 
cussion, the  Court  held  that  the  statute  applied  to  any 
person  acting  for  or  on  behalf  of  the  United  States, 
whether  such  person  was  an  officer  or  not;  and,  therefore, 
applied  the  section  to  a  Secret  Service  operative  employ- 
ed by  the  Secretary  of  the  Treasury,  holding  that  the 
bribery  or  attempted  bribery  of  such  a  person  to  collude 
in  or  allow  a  fraud  on  the  United  States,  was  an  offense 
within  the  terms  of  the  statute. 

In  King  vs.  United  States,  112  Federal,  is  a  state  of 
facts  which  showed  an  offense  under  Section  5501  of  the 
old  Statutes,  in  the  receiving  of  a  large  sum  of  money  by 
:  a  Captain  in  the  United  States  Quartermaster's  Depart- 
ment, for  the  acceptance  and  rejection  of  material  to  be 
used  in  the  construction  of  a  public  building,  such  pay- 
ment having  been  made  him  by  the  Contractor.  The 
Circuit  Court  of  Appeals  for  the  Fifth  Circuit  sustains  a 
conviction  under  such  facts,  but  reverses  the  case  upon 
another  question.  In  the  opinion  is  a  copy  of  the  indict- 
ment. 

An  indictment  under  these  sections  should  charge  that 
the  bribe  was  given  with  the  intent  to  influence  the  of- 
ficial action  of  the  person.  An  indictment  should  also 
clearly  specify  the  official  capacity  of  the  person  who  has 
accepted  the  bribe,  or  to  whom  an  attempt  has  been  made 


Offenses  Relating  To  Official  Duties.  333 

to  give  a  bribe.  It  was  said,  however,  in  the  King  case, 
that  after  the  verdict,  a  general  allegation  which  seems 
to  show  capacity  of  supervision  over  a  particular  Gov- 
ernmental function  would  be  sufficient. 

In  the  case  of  Sharp  against  the  United  Stales,  138 
Federal,  878,  the  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit,  while  reversing  the  case  upon  another  question, 
held  that  an  indictment  against  a  United  States  Indian 
Agent  for  bribery,  which  alleged  that  he,  having  charge 
of  the  execution  and  completion  of  certain  leases  for 
certain  contracts  of  land  in  a  specified  Indian  reservation, 
commonly  known  as  the  Ponca  Pasture,  etc.,  feloniously 
and  corruptly  accepted  and  received  the  sum  of  fifteen 
hundred  dollars  from  one  A.,  for  the  purpose  of  influenc- 
ing his  action  on  the  completion  of  such  leases,  was  suffi- 
cient to  charge  the  offense  under  5501.  The  case  also 
directly  holds  that  an  Indian  Agent,  in  the  execution 
and  completion  of  leases  of  Government  lands,  was 
charged  with  such  an  official  trust  that  his  receiving  a 
bribe  to  influence  his  official  action  rendered  him  subject^ 
to  punishment  under  the  above  section. 

The  case  of  United  States  vs.  Haas,  163  Federal,  908, 
was  an  indictment  under  the  old  Conspiracy  Statute,  for 
a  violation  of  the  old  bribery  section,  which  was  5451, 
and  is  interesting  in  this  connection,  because  in  that 
case  the  Court  held  that  a  person  employed  by  the  United 
States  as  an  Assistant  Statistician  in  the  Department  of 
Agriculture,  in  the  performance  of  the  duties  with  which 
he  is  charged  by  the  rules  of  the  Department,  ads  for  the 
United  States  in  an  official  function  within  the  meaning 
of  Revised  Statutes  No.  5451,  making  it  a  criminal  of- 
fense to  bribe  any  such  person,  to  induce  him  to  do  or  to 
omit  to  do  any  act  in  violation  of  his  lawful  duty. 

Sec.  160a.    United  States  Officer. 

A  baggage  porter,  while  the  railways  are  under  gov- 
ernment supervision  is  an  officer  within  the  meaning  of 
the  foregoing  section,  U.  S.  vs.  Krichman,  256  F.  974. 

An  officer  must  not  induce  the  crime,  U.  S.  vs.  Lynch, 
256  F.  983.  See  Krichman  vs.  U.  S.  41  Sup.  Ct.  Rep.  514, 
which  reverses. 


334  Federal  Criminal  Law  Proceduee. 

§  161.  Political  Contributions  Not  to  be  Solicited  by 
Certain  Officers. — Section  118  of  the  new  Code  reads  as 
follows: 

"Sec.  118.  No  Senator  or  Representative  in,  or  Delegate  or  Resi- 
dent Commissioner  to  Congress,  or  Senator,  Representative,  Delegate, 
or  Resident  Commissioner-elect,  or  officer  or  employee  of  either  House 
of  Congress,  and  no  executive,  judicial,  military  or  naval  officer  of  the 
United  States,  and  no  clerk  or  employee  of  any  Department,  branch, 
or  bureau  of  the  executive,  judicial,  or  military  or  naval  service  of 
Ihe  United  States,  shall  directly  or  indirectly,  solicit  or  receive,  or. 
be  in  any  manner  concerned  in  soliciting  or  receiving,  any  assessment, 
subscription,  or  contribution  for  any  political  purpose  whatever,  from 
any  officer,  clerk,  or  employee  of  the  United  States,  or  any  Depart- 
ment, branch,  or  bureau  thereof,  or  from  any  person  receiving  any 
salary  or  compensation  from  moneys  derived  from  the  Treasury  of 
the  United  States." 

§  162.  Political  Contributions  Not  to  be  Received  in 
Public  Offices. — Section  119  of  the  new  Code  reads  as 
follows: 

"Sec.  119.  No  person  shall,  in  any  room  or  building  occupied  in 
the  discharge  of  official  duties  by  any  officer  or  employee  of  the 
United  States  mentioned  in  the  preceding  section,  or  in  any  navy- 
yard,  fort,  or  arsenal,  solicit  in  any  manner  whatever  or  receive  any 
contribution  of  money  or  other  thing  of  value  for  any  political  pur- 
pose whatever." 

§  163.    Immunity  from  Official   Proscription,   Etc.— 

Section  120  is  in  the  following  words: 

"Sec.  120.  No  officer  or  employee  of  the  United  States  mentioned 
in  section  one  hundred  and  eighteen,  shall  discharge,  or  promote,  or 
degrade,  or  in  any  manner  change  the  official  rank  or  compensation 
of  any  other  officer  or  employee,  or  promise  or  threaten  so  to  do,  for 
giving  or  withholding  or  neglecting  to  make  any  contribution  of 
money  or  other  valuable  thing  for  any  political  purpose." 

§  164.  Giving  Money,  Etc.,  to  Officials  for  Political 
Purposes  Prohibited. — Section  121  of  the  new  Code  is  as 
follows: 

"Sec.  121.  No  officer,  clerk,  or  other  person  in  the  service  of  the 
United  States  shall,  directly  or  indirectly,  give  or  hand  over  to  any 
other  officer,  clerk,  or  person  in  the  service  of  the  United  States,  or 
to  any  Senator  or  Member  of  or  Delegate  to  Congress,  or  Resident 
Commissioner,   any  money  or  other  valuable  thing  on  account  of  or 


Offenses  Relating  To  Official.  Duties.  .'I85 

to  be  applied  to  the  promotion  of  any  political  object  whatever.'' 

§  165.  Penalty  for  Violating  the  Provisions  of  the 
Four  Preceding  Sections. — Section  122  is  in  the  following 
words: 

"Sec.  122.  Whoever  shall  violate  any  provision  of  the  four  pre- 
ceding sections  shall  be  fined  not  more  than  five  thousand  dollars,  or 
imprisoned  not  more  than  three  years,  or  both." 

The  above  sections  are  taken  from  the  First  Volume  of 
the  Supplements,  396,  and  were  what  was  originally 
known  as  the  Civil  Service  Act.  The  case  of  the  United 
States  vs.  Thayer,  in  154  Federal,  508,  originated  on  that 
portion  of  the  original  law  which  is  now  Section  119, 
above  quoted,  and  was  a  prosecution  based  upon  the 
sending  of  letters  by  mail  to  the  Federal  employes,  so- 
liciting political  contributions  for  use  by  the  Repub- 
lican State  Committee,  such  letters  to  be  delivered  to 
such  Federal  employee  in  the  Federal  building  at  Dallas, 
Texas.  The  lower  Court  held  that  the  sending  of  such 
a  letter  addressed  to  an  Internal  Revenue  employee  at 
his  office  in  the  Federal  Building,  by  a  defendant  who 
was  neither  an  officer  nor  an  employee  of  the  United 
States,  did  not  constitute  an  offense  within  the  Act.  The 
Government  sued  out  a  writ  of  error  under  the  new  stat- 
ute, authorizing  the  United  States  to  go  direct  to  the 
Supreme  Court  of  the  United  States  under  certain  condi- 
tions, and  the  Supreme  Court  of  the  United  States  re- 
versed the  judgment  of  the  lower  Court,  and  held  that, 

"solicitation  by  letter,  intended  to  be  received  and  read  by  an 
Internal  Revenue  employee  in  the  Post-office  Building,  and  which  was 
so  received  and  read  in  such  building,  is  embraced  by  the  provision 
of  the  Civil  Service  Act  now  under  discussion,  that  no  person  shall 
in  any  room  or  building  occupied  in  the  discharge  of  official  duties 
by  any  officer  or  employee  of  the  United  States  mentioned  in  such 
Act,  solicit  'in  any  manner  whatever'  or  receive  any  contribution  of 
money  or  any  other  thing  of  value,  for  any  political  purpose  what- 
ever." 

In  the  course  of  opinion,  the  Court  says: 

"The   solicitation   was   made   at   some   time,   somewhere,     The   time 
determines    the    place;     it    was    not    completed    when    the    letter    was  ' 
dropped  into  the  post.     If  the  letter  had  miscarried   or  been  burned 
the  defendant  would  not  have  accomplished  the  solicitation.  The  court 
below  was  misled  by  cases  in  which,  upon  an  indictment  for  obtaining 


336  Fedeeal  Ceiminal  Law  Peoceduee. 

money  by  false  pretenses,  the  crime  was  held  to  have  been  committed 
at  the  place  where  drafts  were  put  into  the  post  by  a  defrauding 
person,  but  these  stand  on  the  analogy  of  the  acceptance  by  mail  of 

an  officer,  and  throw  no  light Therefore,  we  repeat,  until  after 

the  letter  had  entered  the  building,  the  offense  was  not  completed, 
but  when  it  had  been  read.  The  case  was  not  affected  by  the  nature 
of  the  intended  means  by  which  it  was  put  into  the  hands  of  the 
person  addressed.  Neither  can  the  case  be  affected  by  speculation  as 
to  what  the  position  would  have  been  if  the  receiver  had  put  the  letter 
in  his  pocket  and  had  read  it  later,  at  home.  Offenses  usually  de- 
pend for  their  completion  upon  events  that  are  not  wholly  within 
the  offender's  control,  and  that  may  turn  out  in  different  ways." 
U.  S.  vc.  Thayer,  209  U.   S.  p.  39 

In  the  case  of  United  States  vs.  Smith,  163  Federal, 
926,  District  Judge  Jones  held  that  the  personal  delivery 
to  a  postmaster,  in  his  office,  of  a  sealed  letter  containing 
a  request  for  a  contribution  for  a  political  campaign  con- 
stitutes a  criminal  offense  under  the  Act  under  discus- 
sion. 

§  167.  Government  Officer,  Etc.,  Giving  Out  Advance 
Information  Respecting  Crop  Reports.— The  new  Code, 
at  Section  123,  contains  an  entirely  new  statute,  which  is 
the  fruit  of  stock  exchanges  and  the  alternate  rage  of 
the  American  bull  and  bear,  and  is  in  the  following- 
words  : 

"Whoever,  being  an  officer  or  employee  of  the  United  States  or  a 
person  acting  for  or  on  behalf  of  the  United  States  in  any  capacity 
under  or  by  virtue  of  the  authority  of  any  Department  or  office 
thereof,  and  while  holding  such  office,  employment,  or  position,  shall, 
by  virtue  of  the  office,  employment  or  position  held  by  him,  become 
possessed  of  any  information  which  might  exert  an  influence  upon 
or  affect  the  market  value  of  any  product  of  the  soil  grown  within 
the  United  States,  which  information  is  by  law  or  by  the  rules  o£ 
the  Department  or  office  required  to  be  withheld  from  publication 
until  a  fixed  time,  and  shall  wilfully  impart,  directly  or  indirectly, 
such  information,  or  any  part  thereof,  to  any  person  not  entitled 
under  the  law  or  the  rules  of  the  Department  or  office  to  receive  the 
same;  or  shall,  before  such  information  is  made  public  through 
regular  official  channels,  directly  or  indirectly  speculate  in  any  such 
product  respecting  which  he  has  thus  become  possessed  of  such 
information,  by  buying  or  selling  the  same  in  any  quantity,  shall 
be  fined  not  more  than  ten  thousand  dollars,  or  imprisoned  not  more 
than  ten  years,  or  both:  Provided,  That  no  person  shall  be  deemed 
guilty  of  a  violation  of  any  such  rule,  unless  prior  to  such  alleged 
violation  he  shall  have  had  actual  knowledge  thereof." 


Offenses  Relating  To  Official  Duties.  337 

§  168.  Government  Officer,  Etc.,  Knowingly  Compil- 
ing or  Issuing  False  Statistics  Respecting  Crops. — Sec- 
tion 124  of  the  new  Code  is  likewise  pioneer  legislation, 
and  is  in  the  following  words: 

"Whoever,  being  an  officer  or  employee  of  the  United  States,  and 
whose  duties  require  the  compilation  or  report  of  statistics  or  in- 
formation relative  to  the  products  of  the  soil,  shall  knowingly  compile 
for  issuance,  or  issue,  any  false  statistics  or  information  as  a  report 
of  the  United  States,  shall  be  fined  not  more  than  five  thousand  dol- 
lars, or  imprisoned  not  more'  than  five  years,  or  both." 

§  169.  Counterfeiting  Weather  Forecasts,  Interfering 
with  Signals,  Etc. — In  the  33  Statute  at  Large,  page 
864,  there  was  annexed  to  the  Agricultural  Department 
Appropriation  Act  the  following  statute,  with  reference 
to  the  protection  and  reliability  of  weather  reports  and 
forecasts,  including  signals  issued  by  and  under  the  con- 
trol of  the  Agricultural  Department : 

"Any  person  who  shall  knowingly  issue  or  publish  any  counterfeit 
weather  forecasts  or  warnings  of  weather  conditions,  falsely  repre- 
senting such  forecasts  or  warnings  to  have  been  issued  or  published 
by  the  Weather  Bureau  or  other  branch  of  the  Government  Service, 
or  shall  molest  or  interfere  with  any  weather  or  storm  flag  or  weath- 
er map  or  bulletin  displayed  or  issued  by  the  United  States  Weather 
Bureau,  shall  be  deemed  guilty  of  a  misdemeanor,  and  on  conviction 
thereof,  for  each  offense,  be  fined  in  the  sum  not  exceeding  five  hun- 
dred dollars,  or  imprisoned  not  to  exceed  ninety  day»,  or  be  both  fined 
and  imprisoned,  in  the   discretion  of  the  Court." 


22 


CHAPTER  VIII. 

OFFENSES    AGAINST    OPERATIONS    OF    THE    GOVERNMENT 

170.  New  Code  Generally  Under  This  Head. 

171.  Forgery  of  Letters  Patent. 

172.  Forging  Bond,  Bid,  Public  Record,  Etc. 
172a.  Covers  Civil  Service  Examination,  Etc. 
172b.  False  Claims  Continued. 

173.  Forging  Deeds,  Powers  of  Attorney,  Etc. 
173a.  Illustrative  Cases. 

174.  Having  Forged  Papers  in  Possession. 

175.  False   Acknowledgments. 

176.  Falsely  Pretending  to  be  a  United  States  Officer. 
176a.  Intent  to  Defraud,  Etc. 

177.  False  Personation  of  Holder  of  Public  Stocks. 

178.  False  Demand  or  Fraudulent  Power  of  Attorney. 

179.  Making  or  Presenting  False  Claims. 
179a.  Same,   Continued. 

180.  Embezzling   Arms,    Stores,   Etc. 

181.  Conspiracies  to   Commit  Offenses  Against  the  United   States; 

All  Defendants  Liable  for  Acts  of  One. 
181a.  Indictment. 
181b.  Conspiracy   Continued. 

182.  Sufficiency  of  Description. 

183.  Venue. 

183a.  Special  Charge  on  Venue. 

184.  Illustrative  Cases. 

184a.  Illustrative  Cases  Continued. 

185.  Bribery  of  United  States  Officer. 
185a.  Officer — Meaning  of. 

186.  Unlawful  Taking  or  Using  Papers  Relating  to  Claims. 

187.  Persons  Interested  not  to  Act  as  Agents  of  the  Government. 

188.  Enticing  Desertions  From  the  Military  or  Naval  Service. 

189.  Enticing  Away  Workmen. 

190.  Injuries  to   Fortifications,   Harbor   Defenses,   Etc. 

191.  Unlawful  Entering  Upon  Military  Reservation,  Fort,  Etc. 

192.  Robbery  or  Larceny  of  Personal  Property  of  the  United  States. 

193.  Embezzling,  Stealing,  Etc.,  Public  Property. 

194.  Receivers,  etc.,  of  Stolen  Property. 

195.  Timber  Depredation  on  Public  Lands. 

196.  Timber,  Etc.,  Depredation  on  Indian  and  Other  Reservations. 

197.  Boxing,  Etc.,  Timber  on  Public  Lands  for  Turpentine,  Etc. 

198.  Setting  Fire  to  Timber  on  Public  Lands. 

199.  Failing  to  Extinguish  Fires. 

200.  Breaking  Fence  or  Gate  Enclosing  Reserve  Lands,  or  Driving 

or  Permitting  Live  Stock  to  Enter  Upon. 

(338) 


Against  Operations  of  Government.  339 

§  201.  Injuring  or  Removing  Posts  or  Monuments. 

202.  Interrupting  Service. 

203.  Agreement  to  Prevent  Bids  at  Sale  of  Lands. 

204.  Injuries  to  United  States  Telegraph,  Etc.,  Lines. 

205.  Counterfeiting  Weather  Forecasts. 

206.  Interfering  with  Employees  of  Bureau  of  Animal  Industry. 

207.  Forgery  of  Certificate  of  Entry. 

208.  Concealment  or  Destruction  of  Invoices,  Etc. 

209.  Resisting    Revenue    Officers;     Rescuing    or    Destroying    Seized 

Property,  Etc. 

210.  Falsely  Assuming  to  be  Revenue  Officers. 

211.  Offering  Presents  to  Revenue  Officers. 

212.  Admitting  Merchandise  to  Entry  for  Less  than  Legal  Duty. 

213.  Securing  Entry  of  Merchandise  by  False  Samples,  Etc. 

214.  False  Certification  by  Consular  Officers. 

215.  Taking  Seized  Property  from  Custody  of  Revenue  Officer. 

216.  Forging,  Etc.,  Certificate  of  Citizenship. 

216a.     Cancellation   of  Illagally   Secured   Certificates   of   Citizenship. 

217.  Engraving,  Etc.,  Plate  for  Printing  or  Photographing,  Conceal- 

ing or  Bringing  Into  the  United  States,  Etc.,  Certificate  of 
Citizenship. 

218.  False  Personation,  Etc.,   in  Procuring  Naturalization. 

219.  Using  False  Certificate  of  Citizenship  or  Denying  Citizenship, 

Etc. 

220.  Using  False  Certificate,  Etc.,  as  Evidence  of  Right  to  Vote. 

221.  Falsely  Claiming  Citizenship. 

222.  Taking  False  Oath  in  Naturalization. 
222a.  Oath   Must   be   Material. 

223.  Provisions  Applicable  to  all  Courts  of  Naturalization. 
223a.  To  Cancel  Certificate. 

224.  Corporations,  Etc.,  Not  to  Contribute  Money  for  Political  Elec- 

tions, Etc. 

§  170.  In  tlie  new  Criminal  Code,  which  went  into 
effect  January  1,  1910,  there  are  fifty-eight  sections,  from 
27  to  58  inclusive,  which  treat  of  various  offenses  under 
the  above  general  head,  many  of  which  sections  will  not 
be  considered  herein,  other  than  to  copy  them,  and  refer 
to  the  old  Section  of  the  Revised  Statutes  of  like  nature, 
for  the  reason  that  such  offenses  are  scarcely  ever  com- 
mitted. 

§  171.  Forgery  of  Letters  Patent. — The  Act  of  March 
3,  1825,  which  became  Section  5416  of  the  Revised  Stat- 
utes, and  which  the  Court,  in  the  case  of  United  States 
vs.  Irwin,  5  McLean,  178,  determined  had  repealed  the 
fourteenth  section  of  the  Act  of  April  30, 1790,  which  pro- 


'M'2  Federal  Criminal  Law  Procedure. 

made  clear  by  the  opinion  in  the  case  of  United  States  vs. 
Wentworth,  11  Federal,  52. 

It  is  absolutely  necessary  that  the  indictment  allege 
that  the  acts  were  committed  for  the  purpose  of  defraud- 
ing the  United  States,  and  that  the  persons  so  committing 
the  offense  had  such  intent;  and  if  the  facts  completely 
show  upon  their  face  that  the  result  would  not  have  been 
a  fraud  upon  the  United  States,  or  that  the  United  States 
could  not  have  been  defrauded,  then  and  in  that  event, 
no  offense  is  plead. 

In  the  case  of  United  States  vs.  Barnhart,  33  Federal, 
459,  which  grew  out  of  a  forged  affidavit  with  reference 
to  the  selection  of  certain  Government  lands,  the  Court 
held  that  even  though  the  affidavit  was  false  and  forged, 
no  offense  was  committed,  for  the  reason  that  the  affi- 
davit could  not  be  legally  used  before  the  Land  Office  or 
before  the  Secretary  of  the  Interior,  for  the  reason  that 
those  officers  had  theretofore  superseded  such  affidavits; 
hence,  such  affidavits  could  not  be  legally  used  to  defraud 
the  United  States. 

In  United  States  vs.  Gowdy,  37  Federal,  333,  the  Court 
held  that  a  false  affidavit  in  support  of  a  pension  would 
support  a  prosecution  hereunder,  because  the  same  was 
in  support  of  a  claim  against  the  Government,  which 
would  have  resulted  in  defrauding  the  Government. 

In  United  States  vs.  Bunting,  82  Federal,  883,  an  ap- 
plicant for  a  Government  clerkship  filed  a  sworn  appli- 
cation in  the  form  required  for  an  examination  by  the 
Civil  Service  Commission,  and  was  afterwards  notified 
by  postal  card  to  appear  for  examination  at  a  time  stated. 
By  previous  arrangement,  another  person,  impersonating 
the  applicant,  presented  himself  for  examination,  and 
filled  out  a  paper  known  as  the  declaration  sheet,  which 
contained  questions  concerning  the  applicant,  and  signed 
the  applicant's  name  thereto.  The  Court  held  that  Sec- 
tion 5418  covered  such  a  case,  and  sustained  the  indict- 
ment, and  observed  that  the  acts  were  an  attempt  to 
prejudice  the  rights  of  the  United  States  in  the  adminis- 
tration of  the  Civil  Service  Statutes,  and  had  the  defend- 
ant been  successful,  he  would  have  obtained  a  privilege 
which  would  have  placed  him  in  a  favored  class,  and 


Against  Operations  of  Government.  343 

have  entitled  him  to  an  advantage  over  others  in  the  ap- 
pointment to  office,  which  privilege  was  a  valuable  one, 
and  would  have  been  in  prejudice  of  the  Government. 

In  the  case  of  Staton  vs.  United  States,  88  Federal,  253, 
the  Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  in 
passing  upon  a  case  wherein  the  defendant  had  been  con- 
victed while  a  postmaster  for  making  out  his  quarterly 
accounts  and  forging  the  name  of  the  Justice  of  the  Peace 
thereto,  and  thus  pretending  to  show  that  he  had  taken 
his  oath  to  the  correctness  of  his  accounts  before  the 
Justice  of  the  Peace,  and  upon  the  trial  of  which  the 
defendant  had  contended  that,  as  a  matter  of  fact,  his 
accounts  were  just  and  true,  and  had  thereupon  requested 
the  trial  court  to  instruct  the  jury  that  if,  as  a  matter 
of  fact,  his  accounts  were  true  and  just,  that  then  and  in 
that  event  the  United  States  could  not  have  been  defraud- 
ed, said: 

"Inasmuch  as  the  trial  Court,  in  its  charge,  altogether  ignored  the 
intent  with  which  the  acts  complained  of  had  been  committed,  and 
instructed  the  jury  that  the  accused  was  guilty  of  the  crime  of  forg- 
ery, if  he  signed  the  name  of  the  Justice  to  his  reports,  ....  it  is 
manifest  that  there  was  error." 

The  Court  further  said  that  the  accused  was  entitled  to 
have  the  jury  determine  the  intent  involved,  because  it 
was  a  ncessary  ingredient  of  the  offense  charged  in  the 
indictment,  as  to  whether  he  had  been  actuated  with  an 
intent  to  defraud  the  United  States. 

So,  also,  in  the  case  of  the  United  States  vs.  Ah  Won, 
97  Federal,  494,  it  was  held  that  the  making  of  a  blank 
form  of  a  certificate  of  residence,  such  as  when  filed  are 
issued  by  the  United  States  to  Chinese  and  entitled  them 
to  remain  in  the  country,  is  not  within  Section  5418,  mak- 
ing it  a  crime  to  counterfeit  any  writing  for  the  purpose 
of  defrauding  the  United  States. 

In  United  States  vs.  McKinley,  127  Federal,  166,  the 
Court  held  that  the  forgery  of  homestead  applications 
and  affidavits  with  intent  to  thereby  obtain  title  to  public 
lands  of  the  United  States,  constitutes  an  offense  under 
Section  5418,  although  the  land  was  described  as  in 
Township  24  South  of  Range  East,  without  naming  the 


344  Federal  Criminal  Law  Procedure. 

meridiaD,  where,  in  fact,  all  the  townships  in  the  state 
are  numbered  from  the  same  meridian,  and  the  descrip- 
tion was,  therefore,  sufficient  to  identify  the  lands  to  the 
officers  acting  on  the  papers,  and  such  papers  were  ca- 
pable of  effecting  the  intended  fraud. 

In  the  case  of  Neff  vs.  United  States,  165  Federal,  273, 
the  Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  held 
that  when  a  false  instrument  or  affidavit  is  so  palpably 
and  absolutely  invalid  that  it  cannot  defraud  or  inflict 
loss  or  injury  under  any  circumstances,  it  may  not  form 
the  basis  of  a  charge  of  forging  it  or  of  uttering  it,  or  of 
transmitting  it,  to  the  officer,  to  defraud  the  United 
States;  but  if,  under  any  contingency,  it  may  have  the 
effect  to  deceive  and  defraud,  it  is  sufficient  to  found  a 
conviction  of  such  an  offense  upon.  This  decision  arose 
in  a  case  where  the  defendant  had  forwarded  to  the  of- 
ficers of  the  Land  Department  affidavits  that  were  forged 
and  false,  which  were  erroneously  received  by  the  Land 
Office,  but  which,  if  acted  upon,  would  have  caused  the 
issuance  by  the  United  States  of  a  patent  to  the  land, 
which  purchase  could  not  have  been  successfully  attacked 
collaterally  if  the  land  had  passed  into  the  hands  of  an 
innocent  purchaser,  and  the  United  States  would  thereby 
have  been  defrauded. 

§  172a.  Covers  Civil  Service  Examination. — This  stat- 
ute is  broad  enough  to  make  unlawful  a  fraudulent  civil 
service  examination  or  the  forging  of  a  voucher  in  a  bid. 
Hass  vs.  Henkle,  216  U.  S.,  462;  Curley  vs.  U.  S.,  130 
Federal,  1;  U.  S.  vs.  Bunting,  82  Federal,  883;  U.  S.  vs. 
Plyler,  222  U.  S.,  15.  It  is  not  necessary  that  there  should 
be  a  pecuniary  loss  to  the  Government.  Hass  vs.  Henkle, 
216  U.  S.  462. 

Sec.  172b.     False  Claim,  etc.,  Continued. 

Sec.  28,  above,  will  not  support  a  prosecution  for  a 
false  claim  if  the  claim  was  not  forged;  the  prosecution 
in  such  a  case  will  be  under  Sec.  29,  U.  S.  vs.  Smith,  262 
F.  191. 

§  173.  Forging  Deeds,  Powers  of  Attorney,  Etc.— 
Section  29  of  the  new  Code,  in  the  following  words: 


Against  Operations  of  Government.  345 

"Whoever  shall  falsely  make,  alter,  forge,  or  counterfeit,  or  cause 
or  procure  to  be  falsely  made,  altered,  forged,  or  counterfeited,  or 
willingly  aid  or  assist  in  the  false  making,  altering,  forging,  or  coun- 
terfeiting, any  deed,  power  of  attorney,  order,  certificate,  receipt,  con- 
tract, or  other  writing,  for  the  purpose  of  obtaining  or  receiving,  or 
of  enabling  any  other  person,  either  directly  or  indirectly,  to  obtain 
or  receive  from  the  United  States,  or  any  of  their  officers  or  agents, 
any  sum  of  money,  or  whoever  shall  utter  or  publish  as  true,  or  cause 
to  be  uttered  or  published  as  true,  any  such  false,  forged,  altered,  or 
counterfeited  deed,  power  of  attorney,  order,  certificate,  receipt,  con- 
tract, or  other  writing,  with  intent  to  defraud  the  United  States, 
knowing  the  same  to  be  false,  altered,  forged,  or  counterfeited;  or 
whoever  shall  transmit  to,  or  present  at,  or  cause  or  procure  to  be 
transmitted  to,  or  presented  at,  any  office  or  officer  of  the  Government 
of  the  United  States,  any  deed,  power  of  attorney,  order,  certificate 
receipt,  contract,  or  other  writing,  in  support  of,  or  In  relation  to, 
any  account  or  claim,  with  intent  to  defraud  the  United  States,  know- 
ing the  same  to  be  false,  altered,  forged,  or  countered,  shall  be  fined 
not  more  than  one  thousand  dollars  and  imprisoned  not  more  than 
ten  years." 

takes  tlie  place  of  old  Section  5421,  and  contains  all  of  the 
elements  of  the  old  Section,  and  adds  thereto  the  word 
"contract,"  and  changes  the  punishment,  fixing  a  maxi- 
mum fine  and  imprisonment. 

Considered  abstractly,  the  Section  comprises  three  of- 
fenses: first,  the  making  of  any  forged  or  counterfeited 
deed  or  other  writing  as  therein  enumerated  for  the 
purpose  of  obtaining  any  sum  of  money  from  the  United 
States  or  any  of  its  officers;  second,  the  uttering  of  any 
such  forged  or  counterfeited  paper,  with  the  intent  to 
defraud  the  United  States,  knowing  it  to  have  been  so 
forged;  third,  the  transmitting  or  presenting  to  any  office 
or  officer  of  the  Government  any  such  writing,  with 
knowledge  that  it  is  false,  or  forged,  with  the  intent  to 
defraud  the  United  States.  An  indictment,  therefore, 
under  either  of  the  three  parts,  must  contain  the  ele- 
ments as  above  set  out,  and  must  specially  plead  the 
intent  and  knowledge  where  requisite.  So,  likewise,  a 
bill  that  includes  in  one  count  allegations  that  set  up 
acts  covering  the  entire  statute,  would  be  bad  for  du- 
plicity. 

In  the  case  of  United  States  vs.  Fout,  123  Federal,  625, 
District  Judge  Adams  divided  the  statute  as  above  in- 


346  Federal  Criminal  Law  Procedure. 

dicated.  In  the  case  of  United  States  vs.  Swan,  131  Fed- 
eral, page  140,  the  same  judge,  in  passing  upon  this  stat- 
ute, held  that  the  forgery  of  an  affidavit  by  a  pensioner, 
to  be  used  in  contesting  his  deserted  wife's  claims  for 
one-half  of  his  pension,  as  authorized  by  the  Act  of  March 
3,  1899,  was  not  a  offense  within  old  Section  5421,  which 
provided  that  any  person  who  falsely  forges  any  writing 
for-  the  purpose  of  obtaining  or  receiving,  or  enabling 
any  other  person,  directly  or  indirectly,  to  receive  from 
the  United  States,  any  sum  of  money,  shall  be  imprisoned, 
etc.,  was  not  an  offense  thereunder.  The  decision  is  based 
upon  the  ground  that  the  purpose  of  Swan  seemed  to  be 
to  make  use  of  the  forged  writing  to  prevent  his  wife 
from  obtaining  half  of  the  pension,  which  had  already 
been  allowed  to  him.  He  was,  therefore,  making  no 
claim  against  the  United  States  for  himself.  His  right 
to  a  pension  had  already  been  established,  and  he,  there- 
fore, did  not  have  the  necessary  intent  under  the  statute 
to  obtain  or  receive  from  the  United  States,  etc.,  any  sum 
of  money. 

Carrying  out  this  distinction,  the  cases  of  United  States 
vs.  Barney,  5  Blatchf.,  294,  and  United  States  vs.  Myler, 
27  Federal  Case  No.  15849,  can  be  read  with  profit,  since 
they  hold  that  the  first  and  second  parts  of  the  old  sec- 
tion, and,  therefore,  of  course,  of  the  new  statute,  are 
confined  to  instruments  designed  to  obtain  money  from 
the  United  States,  and  a  count  alleging  the  forgery  and 
uttering  of  a  certain  false  and  fraudulent  bond  on  the 
exportation  of  distilled  liquors  charges  no  offense  under 
the  section.  To  the  same  effect  is  the  case  of  United 
States  vs.  Reese,  4  Sawyer,  629,  which  held  in  substance 
that  an  indictment  for  uttering  and  presenting  as  true  to 
the  Board  of  Land  Commissioners,  a  false  writing  pur- 
porting to  be  a  grant  of  certain  described  lands  from  the 
Mexican  Government,  with  intent  to  defraud  the  United 
States,  knowing  the  same  to  be  false,  was  subject  to  de- 
murrer on  the  ground  that  the  section  applied  only  to 
instruments  altered  or  forged  for  the  purpose  of  obtain- 
ing moneys  from  the  United  States  or  their  officers  or 
agents.  To  the  same  effect  is  Staton  vs.  United  States,  88 
Federal,  253,  where  it  was  held  that  an  indictment  which 


Against  Operations  of  Government.  347 

alleged  the  signing  of  the  name  of  a  Justice  of  the  Peace 
to  an  affidavit,  with  the  intent  to  defraud  the  United 
States,  charged  no  offense  under  the  section. 

In  United  States  vs.  Wilson,  28  Federal  Case  No.  16732, 
it  was  held  that  the  words  "other  writing"  did  not  em- 
brace a  forged  endorsement  of  a  genuine  instrument,  as 
the  forgery  to  a  bank  check  drawn  by  a  Pension  Agent 
upon  a  depository  of  the  United  States. 

In  the  case  of  the  United  States  vs.  Rohmstormm,  5 
Blatchf.,  222,  it  was  held  that  a  claim  against  the  Gov- 
ernment under  this  section  need  not  be  in  favor  of  the 
party  presenting  the  false  writing  or  instrument  or  paper 
in  support  thereof. 

In  United  States  vs.  Glasener,  81  Federal,  566,  the 
Court  held  that  false  statements  in  the  certificate  of  a 
notary  public  did  not  come  within  the  provisions  of  the 
section;  to  the  direct  contrary  of  which  holding  is  the 
case  of  the  United  States  vs.  Hartman,  65  Federal,  490, 
the  courts  being  of  equal  dignity.  In  that  case,  the  Court 
held  that  the  statement  in  a  certificate  of  something  that 
was  not  true,  if  taken  with  the  intent  and  knowledge  re- 
quired by  the  statute,  would  authorize  prosecution  there- 
under, and  subject  the  offender  to  punishment.  To  the 
same  effect,  is  the  decision  in  the  case  of  United  States 
vs.  Moore,  60  Federal,  738. 

In  the  cases  of  United  States  vs.  Wilcox,  4  Blatchf., 
385,  and  United  States  vs.  Bickford,  4  Blatchf.,  337,  it 
was  held  that  where  a  writing  did  not  state  all  the  facts, 
if  made  with  the  intent  to  defraud  denounced  by  the 
statute,  it  would  constitute  an  offense  under  this  section. 
It  must  be  remembered,  as  a  general  proposition,  that 
the  false  statements  so  made  must  be  material,  just  as 
materiality  is  meant  in  a  prosecution  for  perjury.  Every 
false  oath  is  not  perjury.  United  States  vs.  Corbin,  11 
Federal,  238. 

In  the  case  of  United  States  vs.  Moore,  60  Federal,  738, 
District  Judge  Cox  in  passing  upon  a  demurrer  to  an 
indictment  under  this  section,  says  that, 

"the  authorities  are  unanimous  in  holding  that  the  first  paragraph 
of  this  Section  5421  is  a  forgery,  and  not  a  perjury,  statute.     It  pun- 


348  Federal  Criminal  Law  Peoceduee. 

ishes  one  who  falsely  makes  an  affidavit,  and  not  one  who  makes  a 
false  affidavit.  The  words  of  the  statute  are  ejusdem  generis,  and  are 
the  words  usually  adopted  to  describe  the  crime  of  forgery.  False 
making  may  almost  be  said  to  be  synonymous  with  forging.  United 
States  vs.  Statts,  8  Howard,  41;  U.  S.  vs.  Barney,  5  Blatchf.,  294; 
U.  S.  vs.  Wentworth,  11  Federal,  52;  U.  S.  vs.  Reese,  4  Sawyer,  629; 
U.  S.  vs.  Cameron,  4  Dakota,  141,  13  N.  W.,  561;  State  vs.  Wilson,  28 
Minnesota,  52,  9  N.  W.,  28;  Mann  vs.  People,  15  Hun.,  155;  State 
vs.  Young,  46  N.  H.,  266;  Commonwealth  vs.  Baldwin,  11  Gray,  197; 
Barb.  Criminal  Law,  97;  Wharton  Criminal  Law,  653.  It  is  clear, 
then,  if  the  indictment  merely  charges  the  defendants  with  making 
an  affidavit  which  contains  a  false  statement  of  fact,  that  the  offense 
cannot  be  punished  under  the  paragraph  quoted.  For  reasons  stated 
hereafter,  it  is  thought  that  the  indictment  is  defective  under  any 
construction  of  the  statute;  but  assuming  now  that  it  contains  a  full 
and  clear  statement  of  the  acts  of  omission  and  commission  attend- 
ing the  fabrication  of  the  affidavit  and  jurat,  it  amounts  only  to  an 
averment  that  the  notarial  certificate  is  false.  The  names  signed  to 
the  affidavit  and  jurat  are  all  genuine.  No  part  of  the  affidavit  has 
been  altered,  forged,  or  counterfeited.  In  short,  tvie  certificate  con- 
tains a  number  of  false  statements.  It  is  a  false  certificate,  but  not 
a  forged  certificate.  No  authority  has  been  cited  or  found  by  the 
Court,  holding  that  a  notary  who  signs  a  certificate  containing  un- 
truthful statements,  is  guilty  under  a  forgery  statute.  The  statute 
must  be  construed  strictly,  and  until  such  authority  is  presented, 
I  shall  hold  that  the  paragraph  quoted  does  not  cover  such  an  offense.'' 

Of  course,  the  indictment  must  allege  that  the  forged 
or  altered  paper  was  transmitted  to  the  officer  of  the 
Government  in  support  of,  or  in  relation  to,  a  pending 
claim.  In  other  words,  it  must  appear  that  there  was  an 
account  or  claim  against  the  United  States.  United  States 
vs.  Kessell,  62  Federal,  59.  See  also  U.  S.  vs.  Albert,  45 
Federal,  552;  United  States  vs.  Kuentsler,  74  Federal, 
220;  United  States  vs.  Hansee,  79  Federal,  303;  De  Lemos 
vs.  United  States,  91  Federal,  497. 

In  De  Lemos  vs.  United  States,  91  Federal,  499,  the 
case  arose  by  reason  of  the  forgery  of  an  endorsement  to 
a  genuine  Government  draft,  and  the  Circuit  Court  of 
Appeals  for  the  Fifth  Circuit  held  that  an  indictment,  to 
be  good  under  5421,  on  such  a  state  of  facts,  should  lay 
the  charge  on  the  endorsement,  and  not  on  the  draft  be- 
cause it  was  the  endorsement  that  was  forged,  and  not 
the  draft. 

Sec.  173a.     Illustrative  Cases. 


Against  Operations  of  Government.  349 

U.  S.  vs.  Smith,  262  F.491;  U.  S.  vs.  Davis.  231  U.  S. 
183.  These  cases  are  illustrative  of  prosecution-  under 
Sec.  29. 

§  174.  Having  Forged  Papers  in  Possession.— Section 
30  of  the  new  Code  is  in  the  following  words: 

"Sec.  30.  Whoever,  knowingly  and  with  intent  to  defraud  the 
United  States,  shall  have  in  his  possession  any  false,  altered,  forged, 
or  counterfeited  deed,  power  of  attorney,  order,  certificate,  receipt, 
contract,  or  other  writing,  for  the  purpose  of  enabling  another  to 
obtain  from  the  United  States,  or  from  any  officer  or  agent  thereof, 
any  sum  of  money,  shall  be  fined  not  more  than  five  hundred  dollars. 
or  imprisoned  not  more  than  five  years,  or  both." 

The  new  section  fixes  a  maximum  punishment,  and  con- 
tains the  word  "contract."  The  old  statute  5422  left  the 
punishment  to  the  discretion  of  the  Court.  These  are 
the  only  two  differences  between  the  old  and  the  new. 

§  175.  False  Acknowledgments. — Section  31  of  the 
new  Code  reads  as  follows: 

"Sec.  31.  Whoever,  being  an  officer  authorized  to  administer  oaths 
or  to  take  and  certify  acknowledgments,  shall  knowingly  make  any 
false  acknowledgment,  certificate,  or  statement  concerning  the  ap- 
pearance before  him  or  the  taking  of  an  oath  or  affirmation  by  any 
person  with  respect  to  any  proposal,  contract,  bond,  undertaking,  or 
other  matter,  submitted  to,  made  with,  or  taken  on  behalf  of,  the 
United  States,  and  concerning  which  an  oath  or  affirmation  is  require  t 
by  law  or  regulation  made  in  pursuance  of  law,  or  with  respect  to 
the  financial  standing  of  any  principal,  surety,  or  other  party  to  any 
such  proposal,  contract,  bond,  undertaking,  or  other  instrument,  shall 
be  fined  not  more  than  two  thousand  dollars,  or  imprisoned  not  more 
than  two  years,  or  both." 

This  is  an  entirely  new  section.  In  the  1909  Supple- 
ment of  the  Federal  Statutes  annotated,  it  is  said  in 
speaking  of  this  section,  that, 

"This  section  is  new.  As  originally  drafted,  it  was  designed  to 
reach  officers  making  false  acknowledgments  in  contracts,  etc ,  with 
the  Post-office  Department,  that  department  having  strongly  recom- 
mended such  a  section,  in  order  to  put  a  stop  to  abuses  which  fre- 
quently occured  with  respect  to  mail  and  othen  contracts.  The  Com- 
mittee on  Revision  of  Laws  approved  the  recommendation,  and  broad- 
ened the  section  so  as  to  punish  false  acknowledgments  with  respect 
to  any  contract  made  with  or  on  behalf  of  the  Government." 


350  Federal  Criminal  Law  Procedure. 

This  statute  would  seem  to  answer  the  cases  cited  under 
Section  29,  which  held  that  a  false  certificate  of  a  notary 
was  not  punishable. 

§  176.  Falsely  Pretending  to  be  a  United  States  Offi- 
cer.— Section  32  of  the  new  Code,  in  the  following  words: 

"Whoever,  with  intent  to  defraud  either  the  United  States  or  any 
person,  shall  falsely  assume  or  pretend  to  be  an  officer  or  employee 
acting  under  the  authority  of  the  United  States,  or  any  department, 
or  any  officer  of  the  Government  thereof,  and  shall  take  upon  him- 
self to  act  as  such,  or  shall  in  such  pretended  character  demand  or 
obtain  from  any  person  or  from  the  United  States,  or  any  department, 
or  any  officer  of  the  Government  thereof,  any  money,  paper,  document, 
or  other  valuable  thing,  shall  be  fined  not  more  than  one  thousand 
dollars,  or  imprisoned  not  more  than  three  years,  or  both," 

contains  a  general  statute,  which  was  originally  a  special 
statute  against  one  falsely  representing  himself  to  be  a 
Revenue  Officer,  as  set  out  in  old  Section  5448.  This 
section  was  amended  in  the  23  Statute  at  Large,  page  11, 
Chapter  26,  First  Supplement  425,  and  passes  into  the 
new  Code  as  shown  above. 

In  the  case  of  the  United  States  vs.  Ballard,  118  Fed- 
eral, 757,  District  Judge  Phillips,  in  passing  upon  an  in- 
dictment drawn  under  the  above  mentioned  amendment, 
held  that  this  statute  covered  the  obtaining  of  some 
valuable  thing  by  means  of  the  fraudulent  standing  or 
credit  secured  by  holding  one's  self  out  as  such  an  officer, 
and  that  a  month's  lodging  is  a  valuable  thing  within 
the  meaning  of  the  law. 

The  opinion  sets  out  the  indictment  that  was  being 
passed  upon,  which  charges  that  the  defendant  pretended 
to  be  a  Deputy  United  States  Marshal,  and  in  such  pre- 
tended character,  did  demand  and  obtain  from  Julia  Eg- 
geling  a  thing  of  value,  to  wit,  lodging  of  the  value  of 
twenty  dollars.  A  second  count  therein  pleads  the  same 
fact  in  a  different  manner.  While  the  indictment  is  in 
general  terms,  the  Court,  in  passing  thereon,  upon  ob- 
jection, held  that  the  offense  was  statutory,  and  a  bill 
sufficiently  describes  the  same,  which  follows  the  lan- 
guage of  the  statute  and  describes  in  addition  thereto 
the  act  that  was  done  to  constitute  the  offense. 


Against  Operations  of  Government.  351 

Judge  Adams,  in  United  States  vs.  Taylor,  108  Federal, 
held  that  the  section  created  two  offenses,  the  first  of 
which  included  as  an  essential  element,  the  use  of  such 
assumed  position  to  extort  money  or  property  by  wrong- 
fully asserting  a  pretended  claim  of  the  United  States, 
and  the  second  comprehending  the  extortion  of  money 
not  under  the  guise  of  asserting  a  claim  due  the  United 
States,  but  including  the  holding  out  of  the  offender  as 
an  officer  for  the  purpose  of  giving  him  such  credit  as 
will  entitle  him  to  successfully  demand  money  from  an- 
other for  his  private  use,  with  intent  to  defraud,  and. 
therefore,  an  indictment  charging  that  the  defendant 
feloniously,  with  the  intent  to  defraud  H.,  did  falsely  as- 
sume and  pretend  to  be  an  officer  acting  under  the  authori- 
ty of  the  United  States  Treasury  Department,  and  did  then 
and  there  feloniously,  and  with  intent  to  defraud  said 
H.,  take  upon  himself  to  act  as  such  officer,  and  as  a  part 
of  the  same  sentence  including  the  charge,  "and  did  then 
and  there  in  such  assumed  and  pretended  character  as 
such  officer,  demand  and  receive  the  sum  of  ten  dollars, '; 
was  demurrable  for  duplicity.  Judge  Simonton,  in  charg- 
ing the  jury  under  this  statute,  told  them  that  it  was 
necessary  to  find  that  the  defendant  assumed  to  be  the 
officer  mentioned  in  the  indictment;  that  such  assump- 
tion was  false;  that  he  made  such  false  assumption  with 
the  intent  to  defraud;  and  that  he  carried  out  such  intent. 
That  was  in  the  case  of  United  States  vs.  Curtain,  43 
Federal,  433,  which  was  an  indictment  growing  out  of 
one  pretending  to  be  a  Post-office  Inspector,  and  in  such 
pretended  capacity,  visited  a  postmaster,  and  charged 
him  with  an  illegal  sale  of  stamps,  which  illegal  sale  the 
postmaster  admitted;  whereupon,  the  imposter  received 
one  hundred  fifty  dollars  from  the  postmaster,  giving  hi  in 
a  receipt  in  full  for  the  stamps  illegally  used,  and  signing 
it  as  Post-office  Inspector.  The  same  judge  in  United 
States  vs.  Bradford,  53  Federal,  542,  charged  the  jury  to 
find  the  defendant  not  guilty  upon  the  following  state 
of  facts:  A  Postal  Clerk  was  in  his  postal  car,  assorting 
his  mail,  and  he  discovered  Bradford  concealed  in  a  cor- 
ner of  the  car.  He  sprang  and  seized  him  by  the  collar. 
The  defendant  at  once  said,  "lam  Bradford,  and  in  the 


352  Federal  Criminal  Law  Procedure. 

service."  The  Postal  Clerk  denied  that  he  was  in  the 
service,  and  Bradford  then  said,  "I  have  been  discharged, 
but  am  trying  to  steal  a  ride  to  Florence. ' '  The  facts  not 
showing  that  Bradford  claimed  at  the  time  to  be  an 
employee  of  the  United  States,  he  was  not  guilty  of  a 
violation  of  this  section. 

In  United  States  vs.  Farnham,  127  Federal,  478,  Dis- 
trict Judge  McPherson  set  aside  a  conviction,  and  dis- 
charged the  defendant,  in  a  case  under  this  statute,  which 
showed  the  following  facts:  The  defendant,  while  stop- 
ping at  the  prosecutor's  hotel  as  a  guest,  falsely  repre- 
sented himself  to  the  prosecutor  as  a  Secret  Service  op- 
erative in  the  employ  of  the  Government,  and  exhibited 
to  the  prosecutor  a  metal  badge,  inscribed,  ' '  Secret  Serv- 
ice, U.  S."  Ten  months  thereafter,  the  defendant  re- 
turned, and  represented  himself  as  a  traveling  salesman, 
spending  several  days  at  the  hotel.  Prosecutor  believed 
defendant  to  be  a  Free  Mason,  and  took  special  care  of 
him  during  sickness  on  that  account,  after  which  the 
defendant  presented  a  check  which  he  alleged  had  been 
signed  by  his  employer  in  payment  of  his  salary,  and 
obtained  seventy  dollars  thereon  from  prosecutor.  The 
check  was  drawn  on  a  bank  which  did  not  exist;  was 
returned  unpaid,  and  the  prosecutor  declared  that  he 
cashed  the  check  because  he  continued  to  believe  that  the 
defendant  was  a  Secret  Service  operative. 

In  discharging  the  defendant,  the  Court  held  that  the 
facts  were  not  sufficient  to  sustain  a  conviction  for  pre- 
tending to  be  an  employee  of  the  United  States,  and  as 
such,  knowingly  and  feloniously  obtaining  from  another 
a  sum  of  money,  etc. 

§  176a.  Intent  to  Defraud,  Etc. — The  intent  to  de- 
fraud is  an  essential  element  of  Section  32,  hence  one 
would  not  be  guilty  under  it  who  induces  another  to 
purchase  certain  books  through  representations  that  the 
seller  was  an  employee  acting  under  the  authority  of  the 
United  States,  if  the  purchaser  was  not  defrauded  but 
had  received  just  what  he  bargained  for.  U.  S.  vs.  Rush, 
196  Federal,  580.  There  must  really  be  an  officer  such  as 
is  personated  and  one  who  sells  a  book  as  an  U.  S.  officer 


Against  Operations  of  Government.  353 

by  representing  that  the  money  therefor  goes  into  U.  S. 
Treasury  is  not  guilty  under  this  section.  U.  S.  vs.  Bar- 
now,  221  Federal,  140. 

Sec.  176  b.  Falsely  Pretending  to  be  United  States 
Officer  Continued. 

A  detective  who  pretends  to  be  an  officer  in  order  to 
arrest  sailors  for  whom  reward  was  offered  violates  the 
foregoing  statute,  Reeder  vs.  U.  S.,  252  F.  21. 

It  is  an  offense  under  this  section  even  though  there 
be  no  such  officer  as  that  pretended,  U.  S.  vs.  Barrow,  U. 
S.  Sup.  Ct.  Oct.  1915. 

A  congressman  is  such  an  "officer"  as  is  protected  by 
this  statute,  Lamar  vs.  U.  S.,  Sup.  Ct.  Oct.  1915. 

It  is  unlawful  to  use  the  name  of  any  government  offi- 
cer in  advertising  and  practicing  before  any  United 
States  department,  but  there  is  no  penalty  therefor,  see 
Act  April  27,  1916,  under  head  false  personation. 

It  is  an  offense  under  this  section  even  though  whiskey 
is  received  and  even  though  one  already  is  an  officer  of 
the  United  States,  Russell  vs.  U.  S.,  271  F.  684. 

In  the  foregoing  case  the  Circuit  Court  of  Appeals  said 
that  the  act  should  be  construed  in  harmony  with  its  aim 
which  is  not  merely  to  protect  innocent  persons  from 
actual  loss,  but  to  maintain  the  general  good  repute  and 
dignity  of  the  federal  service  itself. 

The  substance  of  the  offense  is  the  various  exemptions 
of  federal  authorities  when  accompanied  with  fraudulent 
intent  and  an  indictment  need  not  allege  that  the  defend- 
ant pretended  to  be  any  particular  officer  but  it  is  suffi- 
cient to  change  that  he  claimed  authority  under  the  Unit- 
ed States,  248  F.  873,  Roberts  vs.  U.  S., 

§  177.  False  Personation  of  Holder  of  Public  Stocks. 
—Section  33  of  the  new  Code,  which  re-enacts  old  Section 
5435,  is  in  the  following  words: 

"Sec.  33.  Whoever  shall  falsely  personate  any  true  and  lawful 
holder  of  any  share  or  sum  in  the  public  stocks  or  debt  of  the  United 
States,  or  any  person  entitled  to  any  annuity,  dividend,  pension,  prize 
money,  wages,  or  other  debt  due  from  the  United  States,  and,  under 
color  of  such  false  personation,  shall  transfer  or  endeavor  to  transfer 
such  public  stock  or  any  part  thereof,  or  shall  receive  or  endeavor  to 
receive   the   money   of   such    true   and    lawful   holder   thereof,   or   the 

23 


354  Federal  Criminal  Law  Procedure. 

money  of  any  person  really  entitled  to  receive  such  annuity,  dividend, 
pension,  prize  money,  wages,  or  other  debt,  shall  be  fined  not  more 
than  five  thousand  dollars,  and  imprisoned  not  more  than  ten  years." 

§  178.  False  Demand  or  Fraudulent  Power  of  Attor- 
ney.— Old  Section  5436  is  displaced  by  the  new  Code  in 
Section  34,  as  follows: 

"Sec.  34.  Whoever  shall  knowingly  or  fraudulently  demand  or  en- 
deavor to  obtain  any  share  or  sum  in  the  public  stocks  of  the  United 
States,  or  to  have  any  part  thereof  transferred,  assigned,  sold,  or 
conveyed,  or  to  have  any  annuity,  dividend,  pension,  prize  money, 
wages,  or  other  debt  due  from  the  United  States,  or  any  part  thereof, 
received,  or  paid  by  virtue  of  any  false,  forged,  or  counterfeited  power 
of  attorney,  authority,  or  instrument,  shall  be  fined  not  more  than 
five  thousand  dollars,  and  imprisoned  not  more  than  ten  years." 

§  179.  Making  or  Presenting  False  Claims. — Sec- 
tion 5438  of  the  old  statutes  is  replaced  by  Section  35  of 
the  new  Code,  in  the  following  words: 

"Sec.  35.  Whoever  shall  make  or  cause  to  be  made,  or  present  or 
cause  to  be  presented,  for  payment  or  approval,  to  or  by  any  person  or 
officer  in  the  civil,  military,  or  naval  service  of  the  United 
States,  any  claim  upon  or  against  the  Government  of  the  United 
States,  or  any  department,  or  officer  thereof,  knowing  such  claim  to  be 
false,  fictitious,  or  fraudulent;  or  whoever,  for  the  purpose  of  obtain- 
ing, or  aiding  to  obtain  the  payment  or  approval  of  such  claim,  shall 
make  or  use,  or  cause  to  be  made  or  used,  any  false  bill,  receipt,  voucher 
roll,  account,  claim,  certificate,  affidavit,  or  deposition,  knowing  the 
same  to  contain  any  fraudulent  or  fictitious  statement  or  entry;  or 
whoever  shall  enter  into  any  agreement,  combination,  or  conspiracy 
to  defraud  the  Government,  of  the  United  States,  or  any  department 
or  officer  thereof,  by  obtaining  or  aiding  to  obtain  the  payment 
or  allowance  of  any  false  or  fraudulent  claim;  o^  whoever,  hav- 
ing charge,  possession,  custody,  or  control  of  any  money  or  other  pub- 
lic property  used  or  to  be  used  in  the  military  or  naval  service,  with 
intent  to  defraud  the  United  States,  or  wilfully  to  conceal  such  money 
or  other  property,  shall  deliver  or  cause  to  be  delivered,  to  any  other 
person  having  authority  to  receive  the  same,  any  amount  of  such 
money  or  other  property  less  than  that  for  which  he  received  a  certi- 
ficate or  took  a  receipt;  or  whoever,  being  authorized  to  make  or 
deliver  any  certificate,  voucher,  receipt,  or  other  paper  certifying  the 
receipt  of  arms,  ammunition,  provisions,  clothing,  or  other  property 
so  used  or  to  be  used,  shall  make  or  deliver  the  same  to  any  other 
person  without  full  knowledge  of  the  truth  of  the  facts  stated  therein, 
and  with  intent  to  defraud  the  United  States,  shall  be  fined  not  more 
than   five   thousand   dollars,   or  imprisoned   not  more  than   five  years. 


Against  Operations  of  Government.  355 

or  both.  And  whoever  shall  knowingly  purchase  or  receive  in  pledge 
for  any  obligation  or  indebtedness  from  any  soldier,  officer,  sailor,  or 
other  person  called  into  or  employed  in  the  military  or  naval  service, 
any  arms,  equipments,  ammunition,  clothes,  military  stores,  or  other 
public  property,  whether  furnished  to  the  soldier,  sailor,  officer,  or 
other  person  under  a  clothing  allowance  or  otherwise,  such  soldier, 
sailor,  officer,  or  other  person  not  having  the  lawful  right  to  pledge 
or  sell  the  same,  shall  be  fined  not  more  than  five  hundred  dollars, 
and  imprisoned  not  more  than  two  years." 

This  section  contains  several  offenses,  and  sets  out  two 
different  punishments.  It  is  necessary,  in  alleging  an  of- 
fense under  the  first  portion  of  the  section  that  there  be 
an  averment  that  the  false  claim,  etc.,  was  made  for  he 
purpose  of  being  presented;  in  other  words,  a  false  claim 
that  was  not  made  for  such  a  purpose  is  not  inhibited  by 
the  statute.  In  prosecutions  under  this  portion  of  the 
statute,  it  is  not  necessary  to  set  out  the  name  of  the  officer 
or  person  to  whom  the  claim  was  presented,  if  such  per- 
son be  sufficiently  designated  by  his  position,  as  First 
Auditor  of  the  Treasury.  So,  also,  different  items  of  the 
account  may  all  be  included  in  one  count  of  the  indict- 
ment.   United  States  vs.  Ambrose,  2  Federal,  764. 

In  United  States  vs.  Coggin,  3  Federal.  492,  the  Court 
held  that  old  Section  5438  includes  a  false  claim  presented 
by  a  person  as  a  pensioner,  demanding  money  as  a  pen- 
sioner. In  that  case,  the  defendant,  by  fraud,  secured  a 
pension  certificate  from  the  Government,  and  thereby  had 
his  name  entered  on  the  pension  roll.  This  certificate  he 
presented  to  the  Pension  Agent,  and  obtained  money 
from  the  United  States.  The  indictment  alleged  that  the 
grounds  upon  which  the  application  was  sustained  before 
the  Commissioner  of  Pensions  and  his  name  entered  upon 
the  list  of  pensioners,  were  all  false,  fictitious,  and  frau- 
dulent, and  that  in  fact  he  was  not  injured  at  the  battle  at 
Corinth  in  any  way,  and  was  not  entitled  to  a  pension. 
The  Court  held  that  the  facts  alleged  were  sufficient  to 
constitute  an  offense  under  that  section. 

In  the  case  of  United  States  vs.  Hull,  14  Federal,  324,  it 
was  held  by  a  District  Court,  that  the  section  was  not 
limited  in  its  operation  to  false  claims  presented  by  the 
accused  on  his  own  behalf,  but  applied  as  well  to  such 
claims  presented  by  an  attorney,  agent,  officer,  or  other 


356  Federal  Criminal  Law  Procedure. 

person  presenting  or  aiding  in  the  collection  of  a  false 
claim,  knowing  it  to  be  false.  Of  course,  the  allegation  of 
"knowledge"  is  absolutely  necessary,  as  is  also  the  proof. 
An  indictment  under  this  section  that  the  defendant  "pre- 
sented and  caused  to  be  presented,"  is  not  bad  for  duplic- 
ity, because  the  statute  employs  the  disjunctive  "or"  in- 
stead of  "and."  In  United  States  vs.  Franklin,  174  Fed- 
eral, 161,  the  same  question  was  passed  upon,  and  the 
Court  held  that  an  indictment  was  not  bad  for  duplicity 
because  it  charges  that  the  accused  "made  and  pre- 
sented." In  the  Franklin  case  the  indictment,  which  set 
out  the  claim  showing  it  to  be  an  itemized  account,  and 
averred  that  certain  sums  charged  therein  "should  have 
been"  certain  smaller  sums,  sufficiently  shows  wherein 
the  claim  is  false  and  fraudulent.  In  that  case  it  was  al- 
leged that  the  fraudulent  claim  was  against  the  War  De- 
partment of  the  United  States,  and  described  the  officer 
to  whom  the  claim  was  presented  as  a  Brigadier-General 
in  the  Army,  and  Superintendent  of  the  Military  Academy 
at  West  Point,  and  alleged  that  he  was  an  officer  author- 
ized to  approve  such  claim.  Held,  that  such  allegation 
was  sufficient  to  show  authority.  Affirmed  by  U.  S.  Su- 
preme Court,  March  14,  1910. 

The  case  of  United  States  vs.  Ingraham,  49  Federal, 
155,  was  an  indictment  for  presenting  for  payment  and 
approval  to  the  Third  Auditor  of  the  Treasury  Depart- 
ment of  the  United  States  of  America,  a  certain  claim 
against  the  Government  of  the  United  States,  and  also  in 
the  second  count  for  using  a  false  affidavit  in  support 
thereof.  An  objection  of  uncertainty,  charging  no  offense 
and  duplicity,  was  overruled  by  the  trial  court,  and  the 
same  questions  were  presented  to  the  Supreme  Court  in 
the  same  case,  reported  in  155  U.  S.,  page  436;  39  Law 
Ed.,  page  213,  and  the  conviction  was  affirmed,  the  Court 
holding  that  it  was  not  error,  of  course,  to  join  distinct  of- 
fenses of  the  same  class  in  one  indictment  in  separate 
counts,  and  that  a  paper  presented  to  the  Third  Auditor 
of  the  Treasury  of  the  United  States,  in  support  of  a  claim 
against  the  Government,  purporting  to  be  an  affidavit  cer- 
tified to  by  a  Justice  of  the  Peace,  is  admissible  in  evi- 


Against  Operations  op  Government.  357 

dence  without  formal  proof  that  he  had  been  duly  com- 
missioned and  qualified  as  a  Justice  of  the  Peace,  and 
that  the  person  indicted  for  presenting  for  payment  a 
false  and  fictitious  claim  to  the  Auditor  of  the  Treasury, 
and  using  a  false  affidavit  in  support  thereof,  if  he  knew 
it  to  be  false,  is  not  the  less  guilty  because  the  person  pur- 
porting to  be  a  Justice  of  the  Peace  before  whom  the  affi- 
davit was  sworn  to,  had  not  been  commissioned  as  such, 
and  was  not  entitled  to  administer  an  oath. 

In  the  case  of  United  States  vs.  Michael,  153  Federal, 
609,  Judge  Maxey  instructed  the  jury  that  the  receiving 
in  pledge  by  a  civilian  from  a  soldier,  of  clothing  issued  to 
the  latter,  during  the  term  of  his  enlistment,  does  not  con- 
stitute a  penal  offense  within  Revised  Statutes  5438,  pro- 
viding that  every  person  who  purchases  or  receives  in 
pledge  from  a  soldier  any  arms,  equipment,  ammunition, 
clothing,  military  stores,  or  other  public  property,  such 
soldier  not  having  the  lawful  right  to  pledge  or  sell  the 
same,  shall  be  imprisoned,  etc.,  since  the  clothing,  on  be- 
ing issued  to  the  soldier,  becomes  his  individual  property, 
and  ceases  to  belong  to  the  United  States.  In  conflict 
with  this  opinion,  seems  to  be  the  case  of  United  States  vs. 
Koplik,  155  Federal,  919,  in  which  Judge  Chatfield  holds 
that  it  is  not  a  defense  to  a  prosecution  under  such  stat- 
ute, 5438,  for  receiving  property  in  pledge  from  a  soldier 
while  in  the  service,  that  such  property  consisted  of  cloth- 
ing which  he  had  paid  for  out  of  his  clothes  allowance,  or 
which  had  been  charged  against  it.  The  policy  of  the 
statute  seems  to  be  best  served  by  Judge  Chatfield 's  de- 
cision. In  United  States  vs.  Hart,  146  Federal,  202,  a  de- 
cision of  District  Judge  Bethea  seems  in  a  measure  to 
support  Judge  Chatfield 's  construction  of  the  statute.  It 
is  there  said: 

"On  motion  to  take  from  the  jury,  the  question  arose  as  to  whether 
certain  articles  of  clothing,  namely,  caps,  gloves,  shoes,  and  goods 
which  had  been  issued  to  soldiers  in  the  service  of  the  United  States, 
and  by  them  sold  and  pledged  to  the  defendant,  are  public  property 
under  Section  5438  of  the  Revised  Statutes.  Clothing  is  issued  to 
soldiers  of  the  United  States  for  use  by  them  in  the  capacity  of  sol- 
diers. The  Government  determines  the  character,  quality,  and  kind 
of  clothing  to  be  issued  to  the  soldiers;     and   when  the  clothing  i3 


358  Federal  Criminal  Law  Procedure. 

issued,  although  it  is  charged  against  the  soldiers  on  their  clothing 
account,  they  receive  but  a  qualified  interest  therein." 

The  Seventeenth  Article  of  War  punishes  the  soldier  by 
Court  Martial  if  he  loses  or  spoils  his  clothing  or  accou- 
trements, and  Section  3748  authorizes  the  Government  to 
seize  such  property  wherever  found.  This  would  indi- 
cate that  the  title  to  clothing  issued  to  soldiers  remains  in 
the  United  States. 

The  case  of  United  States  vs.  Smith,  156  Federal,  859, 
while  it  is  a  prosecution  under  the  same  portion  of  the 
statute,  does  not  raise  or  discuss  the  conflict  noted  in  the 
above  two  cases.  Judge  Hanford,  in  the  Smith  case,  in 
charging  the  jury,  says : 

"You  will  observe  that  the  provisions  of  this  statute,  5438,  apply  to 
persons  who  knowingly  purchase  or  receive  in  pledge  any  of  the  kinds 
of  property  described  here  from  a  soldier,  officer,  or  sailor  in  the 
service  of  the  United  States.  The  elements  of  the  crime  are  guilty 
knowledge,  and  the  actual  purchase  of  and  receiving  in  pledge  the 
kind  of  property  named,  and  receiving  it  from  a  person  in  the  military 
service  of  the  United  States.  All  those  tilings  are  necessary  to  be 
proven,  in  order  to  make  out  a  criminal  case,  The  guilty  knowledge 
that  is  a  necessary  element  of  the  crime  is  not  knowledge  that  the  act 
is  unlawful.  The  law  does  not  permit  ignorance  of  the  provisions  of 
the  law  to  avail  as  a  defense  in  any  case,  but  the  knowledge  must  be 
knowledge  of  the  facts — knowledge  that  the  property  offered  for  sale 
or  pledge  is  the  military  stores  or  property  of  the  United  States — that 
is,  arms,  clothing,  or  property  that  is  provided  by  the  United  States 
for  use  in  the  military  service,  and  knowledge  that  the  person  offering 
to  sell  or  to  pledge  it  is  a  person  in  the  military  service  at  the  time." 

It  must  be  borne  in  mind  that  Sections  3748  and  1242  of 
the  old  statutes  in  short  make  the  possession  of  such  prop- 
erty of  the  United  States  by  a  person  not  in  the  service  of 
the  United  States,  prima  facie  evidence  that  it  had  been 
sold  or  pledged. 

Other  cases  bearing  upon  the  statute  in  its  entirety, 
are  the  following:  United  States  vs.  Daubner,  17  Fed- 
eral, 793;  U.  S.  vs.  Russell,  19  Federal,  591;  U.  S.  vs.  Gris- 
wold,  24  Federal,  361;  U.  S.  vs.  Frisbie,  28  Federal,  808; 
U.  S.  vs.  Ehodes,  30  Federal,  431;  U.  S.  vs.  Griswold,  30 
Federal,  604,  also  same  Volume,  762;  U.  S.  vs.  Reichurt, 
32  Federal,  142;  U.  S.  vs.  Jones,  32  Federal,  482;  U.  S.  vs. 


Against  Operations  of  Government.  359 

Eoute,  33  Federal,  246;  TJ.  S.  vs.  Gowdy,  37  Federal,  332; 
U.  S.  vs.  Wallace,  40  Federal,  144;  U.  S.  vs.  Newton,  48 
Federal,  218;  U.  S.  vs.  Strobach,  48  Federal,  902;  U.  S.  vs. 
Adler,  49  Federal,  733;  U.  S.  vs.  Van  Leuven,  62  Federal, 
62;  U.  S.  vs.  Hartman,  65  Federal,  490;  Rhodes  vs.  U.  S., 
79  Federal,  740;  Dimmick  vs.  U.  S.,  116  Federal,  825;  IT. 
S.  vs.  Lair,  118  Federal,  98;  Pooler  vs.  U.  S.,  127  Federal, 
509;  Franklin  vs.  U.  S.,  U.  S.  Sup.  Ct.,  Oct.,  1909,  term. 

In  Bridgeman  vs.  United  States,  140  Federal,  577,  the 
Circuit  Court  of  Appeals  for  the  Ninth  Circuit  held  that 
inasmuch  as  the  statutory  provisions  and  rules  and  regu- 
lations of  the  Indian  Department  required  accounts  and 
vouchers  for  claims  and  disbursements  connected  with 
Indian  affairs  to  be  transmitted  to  the  Commissioner  of 
Indian  Affairs,  that  a  transmission  to  such  commissioner 
by  an  agent  of  the  Department,  of  a  false  voucher,  etc., 
was  an  offense  under  5438.  This  case  also  authorizes  the 
use  of  the  words  "making  and  presenting,"  as  was  con- 
sidered to  be  correct  in  the  cases  cited  above.  Two  of  the 
counts  in  that  indictment  are  set  out  in  the  decision  and 
approved  by  the  Court,  as  is  also  the  full  charge  of  the 
trial  judge. 

Sec.  179  a.  Making  or  Presenting  False  Claims  Con- 
tinued. 

By  Act  of  Oct,  23,  1918,  C.  194,  Sec.  35,  above,  was 
amended  to  read  as  follows : — 

"Whoever  shall  make  or  cause  to  be  made  or  present  or  cause  to 
be  presented,  for  payment  or  approval,  to  or  by  any  person  or  offi- 
cer in  the  civil,  military,  or  naval  service  of  the  United  States,  or 
any  department  thereof,  or  any  corporation  in  which  the  United 
States  of  America  is  a  stockholder,  any  claim  upon  or  against  the 
Government  of  the  United  States,  or  any  department  or  officer  thereof, 
or  any  corporation  in  which  the  United  States  of  America  is  a  stock- 
holder, knowing  such  claim  to  be  false,  fictitious,  or  fraudulent;  or 
whoever,  for  the  purpose  of  obtaining  or  aiding  to  obtain  the  payment 
or  approval  of  such  claim,  or  for  the  purpose  and  with  the  intent  of 
cheating  and  swindling  or  defrauding  the  Government  of  the  United 
States,  or  any  department  thereof,  or  any  corporation  in  which  the 
United  States  of  America  is  a  stockholder,  shall  knowingly  and  wil- 
fully falsify  or  conceal  or  cover  up  by  any  trick,  scheme,  or  device 
a  material  fact,  or  make  or  cause  to  be  made  any  false  or  fraudulent 
statements  or  representations,  or  make  or  use  or  cause  to  be  made 
or  used  any  false  bill,  receipt,  voucher,  roll,  account,  claim,  certificate, 


^•60      Federal  Criminal  Law  Procedure. 

* 

affidavit,  or  deposition,  knowing  the  same  to  contain  any  fraudulent 
or  fictitious  statement  or  entry;  or  whoever  shall  take  and  carry 
away  or  take  for  his  own  use,  or  for  the  use  of  another,  with  intent 
to  steal  or  purloin,  any  personal  property  of  the  United  States,  or 
any  branch  or  department  thereof,  or  any  corporation  in  which  the 
United  States  of  America  is  a  stockholder;  or  whoever  shall  enter 
into  any  agreement,  combination,  or  conspiracy  to  defraud  the  Gov- 
ernment of  the  United  States,  or  any  department  or  officer  thereof, 
or  any  corporation  in  which  the  United  States  of  America  is  a  stock- 
holder, by  obtaining  or  aiding  to  obtain  the  payment  or  allowance 
of  any  false  or  fraudulent  claim;  and  whoever,  having  charge,  pos- 
session, custody,  or  control  of  any  money  or  other  public  property 
used  or  to  be  used  in  the  military  or  naval  service,  with  intent  to  de- 
fraud the  United  States,  or  any  department  thereof,  or  any  corporation 
in  which  the  United  States  of  America  is  a  stockholder,  or  wilfully 
to  conceal  such  money  or  other  property,  shall  deliver  or  cause  to  be 
delivered  to  any  person  having  authority  to  receive  the  same  any 
amount  of  such  money  or  other  property  less  than  that  for  which  he 
received  a  certificate  or  took  a  receipt;  or  whoever,  being  authorized 
to  make  or  deliver  any  certificate,  voucher,  receipt,  or  other  paper 
certifying  the  receipt  of  arms,  ammunition,  provisions,  clothing,  or 
other  property  so  used  or  to  be  used,  shall  make  or  deliver  the  same 
to  any  other  person  without  a  full  knowledge  of  the  truth  of  the  facts 
stated  therein  and  with  intent  to  defraud  the  United  States,  or  any  de- 
partment thereof,  or  any  corporation  in  which  the  United  States  of 
America  is  a  stockholder,  shall  be  fined  not  more  than  $10,000  or  im- 
prisoned not  more  than  ten  years,  or  both.  And  whoever  shall  pur- 
chase, or  receive  in  pledge,  from  any  person  any  arms,  equipment, 
ammunition,  clothing,  military  stores,  or  other  property  furnished  by 
the  United  States,  under  a  clothing  allowance  or  otherwise,  to  any 
soldier,  sailor,  officer,  cadet,  or  midshipman  in  the  military  or  naval 
service  of  the  United  States  or  of  the  National  Guard  or  Naval  Militia, 
or  to  any  person  accompanying,  serving,  or  retained  with  the  land  or 
naval  forces  and  subject  to  military  or  naval  law,  having  knowledge 
or  reason  to  believe  that  the  property  has  been  taken  from  the  pos- 
session of  the  United  States  or  furnished  by  the  United  States  under 
such  allowance,  shall  be  fined  not  more  than  $500  or  imprisoned  not, 
more  than  two  years,  or  both." 

For  cases  bearing  upon  some  phase  of  the  statute  see 
U.  S.  vs.  Christopherson,  261  F.  225;  Bolland  vs.  U.  S., 
238  F.  529. 

§  180.  Embezzling  Arms,  Stores,  Etc. — As  a  compan- 
ion to  the  section  treated  above,  appears  Section  36  in  the 
new  Code,  which  displaces  old  Section  5439,  and  is  in  the 
following  words: 


Against  Operations  of  Government.  36] 

"Sec.  36.  Whoever  shall  steal,  embezzle,  or  knowingly  apply  to  his 
own  use,  or  unlawfully  sell,  convey,  or  dispose  of,  any  ordnance,  arms, 
ammunition,  clothing,  subsistence,  stores,  money,  or  other  property 
of  the  United  States,  furnished  or  to  be  used  for  the  military  or  naval 
service,  shall  be  punished  as  prescribed  in  the  preceding  section."' 

As  somewhat  enlightening  upon  the  question  as  to  what 
steps  one  should  take  in  order  to  be  in  the  military  service 
of  the  United  States,  may  be  read  the  case  of  Johnson  vs. 
Sayre,  158  U.  S.,  109.  In  that  particular  case,  the  Court 
held  that  a  postmaster's  clerk  in  the  navy,  appointed 
by  the  Secretary  of  the  Navy  with  the  approval  of  the 
President,  is  in  the  naval  service  of  the  United  States; 
but  in  the  reasoning  of  the  opinion  will  be  found  a  number 
of  authorities  and  reasons  that  apply  to  other  conditions. 

Section  36  above  quoted  occupies  the  same  position  to 
Section  35  as  old  Section  5439  did  to  old  Section  5438, 
and,  therefore,  the  observation  of  District  Judge  Swing, 
in  the  case  of  United  States  vs.  Murphy,  9.  Federal,  page 
26,  is  applicable  and  pertinent.  In  that  case  the  indict- 
ment was  drawn  under  Section  5439.  It  contained  two 
counts,  charging  that  the  defendant  had  applied  to  his 
own  use  an  overcoat,  which  had  been  issued  to  an  inmate 
of  the  National  Military  Home  at  Dayton,  to  be  used  by 
him  for  the  military  service  of  the  United  States.  A  de- 
murrer to  the  bill  raised  the  question  whether  clothing  so 
issued  to  inmates  of  that  institution  was  within  the  pro- 
hibition of  that  section.    The  Court  said: 

"The  preceding  section  (5438)  prohibits  the  purchase  of  clothing, 
etc.,  from  any  soldier  or  other  person  called  into  or  employed  in  the 
military  service  of  the  United  States,  such  soldier  or  person  not  hav- 
ing the  lawful  right  to  sell  the  same.  This  section  (5439),  then, 
prohibits  any  person  from  knowingly  applying  to  his  own  use  any  cloth- 
ing or  other  property  of  the  United  States,  furnished  or  to  be  furnished 
for  the  military  service.  Under  Section  5438,  the  clothing  must  be  pur- 
chased from  a  person  'in  the  military  service;'  under  Section  5439, 
it  must  be  clothing  or  other  property  of  the  United  States  'furnished 
or  to  be  used  for  the  military  service.'  The  indictment,  it  is  true, 
charges  in  one  count  that  the  overcoat  in  question  was  'furnished  for 
the  military  service,'  and  in  the  other  that  it  was  'to  be  used  for  the 
military  service;'  but  in  each  it  appears  it  had  been  issued  to  an  in- 
mate of  the  home.  It  is  claimed  in  argument  on  behalf  of  the  Govern- 
ment that  these  military  homes  are  a  part  of  the  military  establish- 


?62  Fedeeal  Criminal  Law  Procedure. 

ment,  and  clothing  issued  to  the  inmates  is  furnished  and  used  for 
the  military  service.  It  is  clear  that  the  inmates  of  these  homes  are 
not  in  the  military  service.  It  is  not  claimed  that  Section  5438  ap- 
plies to  the  purchase  of  clothing  from  them;  nor  do  I  think  that  the 
clothing  issued  to  them  is  used  in  the  military  service  of  the  United 
States.  Congres  could  probably  prohibit  the  purchase  or  clothing 
from  these  inmates,  and  punish  any  one  applying  it  to  other  purposes 
than  for  which  it  is  issued; )  but  the  law  in  force  does  not  apply  to  it, 
and  a  demurrer  must  be  sustained." 

Sec.  180  a,     Embezzling,  Arms,  Stores,  etc.,  Continued. 

The  Circuit  Court  of  Appeals  for  the  5th  Circuit  holds 
that  Sec.  36  is  ineffective  because  of  two  punishments, 
Apr.  1920;  to  the  same  effect  as  Holmes  vs.  U.  S.,  267  F. 
529. 

§  181.  Conspiracies  to  Commit  Offenses  Against  the 
United  States;  All  Defendants  Liable  for  Acts  of  One. — 

One  of  the  most  useful  and  comprehensive  statutes  in  the 
old  revision  was  Section  5440,  which  is  re-enacted  in  the 
new  Code  in  Section  37,  in  the  following  terms: 

"Sec.  37.  If  two  or  more  persons  conspire  either  to  commit  any 
offense  against  the  United  States,  or  to  defraud  the  United  States  in 
any  manner  or  for  any  purpose,  and  one  or  more  01?  such  parties  do 
any  act  to  effect  the  object  of  the  conspiracy,  each  of  the  parties  to 
such  conspiracy  shall  be  fined  not  more  than  ten  thousand  dollars,  or 
imprisoned  not  more  than  two  years,  or  both." 

The  old  and  the  new  sections  are  practically  identical 
with  the  single  exception  that  there  is  no  minimum  pun- 
ishment under  the  latter.  Indictments  under  this  statute 
must  comprehend  in  allegation,  not  only  whatever  aver- 
ments are  necessary  under  it,  but  also  the  necessary  al- 
legations and  ingredients  of  the  offense  or  statute  for 
which  the  conspiracy  was  formed.  An  indictment  that 
fails  to  set  out  the  elements  of  the  offense  conspired  to 
be  committed  is  bad.  A  conspiracy  as  commonly  under- 
stood, is  a  corrupt  agreeing  together  of  two  or  more  per- 
sons to  do,  by  concerted  action,  something  unlawful, 
either  as  a  means  or  an  end.  The  word  "corrupt,"  as 
used,  means  unlawful.  The  intendment  of  this  defini- 
tion is  that  to  conspire  to  do  an  unlawful  act;  or  to 
conspire  to  accomplish  a  result  which  may  in  itself  be 


Against  Operations  of  Government.  363 

lawful,  but  to  do  it  in  an  unlawful  manner;  or  an  unlaw- 
ful agreement  to  accomplish  an  unlawful  result,  are  con- 
spiracies. The  unlawful  combination  may  be  expressly 
proven,  or  it  may  be  provable  from  concerted  action  in 
itself  unlawful.  If  one  join  the  conspiracy  at  any  time 
after  the  formation  of  the  conspiracy,  he  becomes  a 
conspirator,  and  the  acts  of  the  others  become  his,  by 
adoption. 

That  there  is,  or  may  be,  a  difference  between  the 
punishment  prescribed  in  this  section,  and  that  pre- 
scribed in  the  statute  that  the  conspiracy  was  formed  to 
violate,  is  immaterial.  Congress  has  the  power,  says 
the  Supreme  Court  of  the  United  States,  in  Clune  vs. 
United  States,  159  U.  S.,  590,  to  euact  a  statute  making 
a  conspiracy  to  do  an  act  punishable  more  severly  than 
the  doing  of  the  act  itself.  The  power  exists  to  separate 
the  offenses,  and  to  affix  distinct  and  independent  penal- 
ties to  each. 

As  above  indicated,  there  need  be  no  proof  of  the  ex- 
press agreement.  The  full  measure  of  the  law  is  met  if 
the  facts  and  circumstances  indicate  with  the  requisite 
lawful  certainty  the  existence  of  a  preconcerted  plan. 
Reilley  vs.  United  States  106  Federal,  896;  U.  S.  vs.  Cas- 
sidy,  67  Federal,  698;  U.  S.  vs.  Barret,  65  Federal,  62; 
U.  S.  vs.  Wilson,  60  Federal,  890;  U.  S.  vs.  Newton,  52 
Federal,  275;  U.  S.  vs.  Sacia,  2  Federal,  754.  So,  under 
the  same  authorities,  it  need  only  be  shown  that  one  or 
more  of  the  overt  acts  charged  in  the  indictment  have 
been  committed,  and  that  they  were  done  in  furtherance 
of  the  conspiracy.  Federal  Statutes  Annotated,  Volume 
2,  page  250. 

Texts-books  and  Courts  unite  in  the  proposition  that 
where  there  is  a  prima  facie  showing  of  conspiracy,  all 
of  the  acts  done,  and  all  of  the  declarations  made  in  pur- 
suance of  the  originally  concerted  plan,  and  with  refer- 
ence to  the  common  object,  by  any  one  of  the  conspira- 
tors, are  admissible  against  all.  The  rule,  however,  ceases 
after  the  conspiracy,  has  been  ended;  for,  upon  the  com- 
pletion of  the  conspiracy,  acts  and  declarations  of  co- 


?64  Federal  Criminal  Law  Procedure. 

conspirators  are  evidence  only  against  the  one  so  acting 
or  declaring.    Logan  vs.  U.  S.,  144  U.  S.,  263. 

In  Taylor  vs.  U.  S.,  89  Federal,  954,  the  Court  of  Civil 
Appeals  for  the  Ninth  Circuit,  in  a  conspiracy  prosecution 
against  certain  defendants  for  entering  into  a  conspiracy 
to  counterfeit  and  utter  counterfeit  coins  of  the  United 
States,  the  Court  determined  that  the  evidence  showing 
that  one  of  the  defendants  resided  with  another  of  the 
conspirators  for  six  weeks,  during  which  time  the  coins 
were  made,  and  that  he  wrote  the  letter  ordering  the 
machine  with  which  they  were  made,  and  that  after  the 
arrest  he  wrote  one  of  the  defendants  offering  to  assist  in 
procuring  bail,  was  entirely  sufficient  to  authorize  the  ad- 
mission against  him  of  the  statements  of  his  co-conspira- 
tors. In  that  case,  it  was  also  determined  that  the  order 
of  proof  rests  in  the  sound  discretion  of  the  Court;  in 
other  words,  the  Court  was  not  bound  to  exclude  evidence 
of  declarations  until  the  prosecution  should  first  have 
shown  the  connection  of  the  defendant  with  the  offense. 
1  Greenleaf,  Section  111;  6  Am.  and  Eng.  Enc.  of  Law, 
Second   Ed,   689;   State  vs.   "Winner,   17   Kamjis,    298. 

§  181a.  Indictment. — An  indictment  under  this  sec- 
tion is  not  duplicitious  which  shows  a  completed  offense. 
Stanley  vs.  U.  S,  195  Federal,  896.  The  offense  created 
by  this  statute  is  a  conspiracy  and  not  an  overt  act. 
Dwinnell  vs.  U.  S.,  186  Federal,  754.  The  collection  of 
commissions  under  a  conspiracy  to  defraud  the  United 
States  through  purchases  for  the  commissary  department 
is  an  overt  act.  U.  S.  vs.  Burke,  218  Federal,  83.  Woman 
who  is  victim  in  white  slave  violation  may  also  be  con- 
spirator under  this  act.  U.  S.  vs.  Holte,  236  IT.  S.  140.  An 
indictment  under  this  section  must  charge  the  act  consti- 
tuting the  offense  with  reasonable  certainty  and  not  mere 
inference.  U.  S.  vs.  Atlanta  Journal  Co.,  185  Federal,  656. 
A  crime  under  this  statute  is  sufficiently  charged  if  it  be 
stated  that  two  or  more  persons  named  agreed  together 
to  commit  some  act  declared  to  be  a  crime  by  some  stat- 
ute of  the  United  States  and  it  is  also  charged  that  one 
or  more  of  such  persons  did  an  act  to  carry  out  the  oh- 


Against  Operations  of  Government.  365 

ject  of  such  conspiracy.  U.  S.  vs.  Wupperman  et  al.  215 
Federal,  135. 

Sec.  181  b.  Conspiracy  to  Commit  offenses  Against 
United  States  Continued. 

Sec.  37  does  not  make  it  a  criminal  offense  to  vote  il- 
legally, when,  see  U.  S.  vs.  Gradwell,  U.  S.  Sup.  Ct.  Apr. 
1917. 

For  an  indictment  which  is  defective  because  of  time 
allegation  under  this  statute  see  U.  S.  vs.  Baker,  243  F. 
746. 

A  conspiracy  to  resist  the  draft  is  a  conspiracy  to  de- 
fraud the  United  States,  U.  S.  vs.  Galleanni,  245  F.  977. 
It  is  a  violation  of  the  statute  in  the  following  cases: — 

To  divert  cars  under  the  Hepburn  Act,  Dye  vs.  U.  S., 

262  F.  6;  to  violate  the  bank  act,  U.  S.  vs.  Baker,  243  F. 
741;  to  defraud  by  black  mailing  suits,  McKelvy  vs.  U.  S., 
241  F.  801;  to  bring  Chinamen  into  the  United  States, 
Dahl  vs.  U.  S.,  234  F.  618. 

To  increase  price  of  sugar,  U.  S.  vs.  Robinson,  266  F. 
240;  to  bribe  officer,  Hardy  vs.  U.  S.,  269  F.  134,  by  ship- 
ping port  employees,  etc.,  U.  S.  vs.  Carlin,  259  F.  904;  U. 
S.  vs.  Union,  259  F.  907 ;  to  defraud  doctors,  Holsman  vs. 
U.  S.,  248  F.  193;  to  violate  Espoinage  Act,  U.  S.  vs.  Ault, 

263  F.  800;  U.  S.  vs.  Listman,  263  F.  798;  U.  S.  vs.  Strong, 
263  F.  789. 

The  following  cases  bear  upon  the  necessity  of  a  dis- 
tinct allegation  of  overt  act  and  of  time,  U.  S.,  vs.  Rogers, 
226  F.  512;  Tillinghast  vs.  Richards,  225  F.  226;  Birdseye, 
244  F.  972;  Pettibone  vs.  U.  S.,  148  U.  S;  U.  S.  vs.  Robin- 
son, 266  F.  240. 

It  is  not  a  variance  because  the  conspiracy  is  laid  in 
one  district  and  the  overt  act  in  another,  since  the  prosecu- 
tion mav  be  had  in  either,  Bernstein  vs  U.  S.,  238  F.  923; 
Harrington  vs.  U.  S.,  267  F.  97. 

This  statute  will  not  protect  against  corrupt  state  elec- 
tions, U.  S.  vs.  Gradwell,  234  F.  446,  Sup.  Ct.  Apr.  1917; 
nor  can  a  prosecution  be  had  for  defrauding  the  Panama 
Railway,  Salas  vs.  U.  S.,  234  F.  842. 

The  War  Department  is  not  a  government  department 
under  Keane  vs.  U.  S.,  272  F.  577. 


366  Federal  Criminal  Law  Procedure. 

For  accomplice  testimony  under  this  section  see  Mc- 
Ginnis,  vs.  U.  S.,  256  F.  621. 

The  prosecution  may  be  had  where  the  overt  act  is  com- 
mitted, Easterday  vs.  McCarthy,  256  F.  651.  A  conspir- 
acy indictment  is  insufficient  when  the  conspiracy  is  not 
fully  discribed  and  statements  as  to  the  overt  act  will  not 
aid,' Anderson  vs.  IT.  S.,  260  F.  557. 

The  charging-  of  the  statutory  crime  is  ordinarily  suffi- 
cient if  the  words  of  the  statute  are  used  but  there  are 
some  important  exceptions,  Jelke  vs.  U.  S.,  255  F.  264. 

The  statement  of  one  defendant  is  not  admissible 
against  another  after  the  completion  of  the  conspiracy, 
Feder  vs.  U.  S.,  257  F.  694. 

The  act  of  one  is  the  act  of  all  during  conspiracy,  U.  S. 
vs.  Schenck,  253  F.  212. 

For  good  definition  of  conspiracy  see  U.  S.  vs.  McHugh, 
253  F.  224. 

A  single  count  may  allege  a  conspiracy  to  commit  two 
or  more  offenses  and  not  be  duplicitous,  Frohwerk  vs.  U. 
S.,  U.  S.  Sup.  Ct.  Mar.  1919. 

The  most  difficult  question  that  arises  in  the  treatment 
of  conspiracies  is  the  merger  of  the  conspiracy  into  the 
completed  act.  The  mistake  frequently  made  of  using 
the  completed  act,  in  the  pleading,  as  an  overt  act,  to  es- 
tablish the  conspiracy,  when  the  completed  act  makes  an 
entirely  different  offense  of,  perhaps,  lesser  grade. 

The  following  authorities,  carefully  considered  may  be 
of  assistance;  U.  S.  vs.  Kissel,  173  F.  823;  Grant  vs.  U.  S., 
252  F.  693;  McKnight  vs.  U.  S.,  252  F.  687;  U.  S.  vs.  Bopp, 
237  F.  283;  Bishop  Criminal  Law,  Vol.  1,  page  492;  C.  vs. 
Kingsbury  5  Mass.  106;  C.  vs.  Delaney,  1  Grant  Pa.  224. 

The  confession  of  one  conspirator  against  another  is 
admissible  if  the  jury  is  properly  instructed,  Hagan  vs. 
U.  S.,  268  F.  344;  U.  S.  vs.  Freedman,  268  F.  655. 

A  confession  which  is  not  "voluntary"  is  not  admis- 
sible, U.  S.  vs.  Kallas,  272  F.  743. 

A  prosecution  may  be  brought,  as  heretofore  stated, 
where  the  conspiracy  is  formed  or  where  the  overt  act  is 
committed,  Grayson  vs.  U.  S.,  272  F.  554.  For  a  definition 
of  conspiracy  by  the  Supreme  Court  of  the  United  States 


Against  Operations  of  Government.  367 

see  Duplex  vs.  Deering,  41  U.  S.  Sup.  Ct.  Rep.  173. 

There  can  be  no  conspiracy  when  there  is  only  one 
criminal  intent,  there  must  be  two  or  more;  thus  an  officer 
who  seeks  to  entrap  another  would  not  be  a  basis,  for  a 
conspiracy  indictment,  Yick  vs.  U.  S.,  240  F.  60. 

When  the  offense  is  not  proven  letters  written  by  one 
are  mere  hearsay  and  inadmissible,  Stager  vs.  U.  S.,  233 
F.  510. 

§  182.  Sufficiency  of  Description. — In  Cling  vs.  United 
States,  118  Federal,  538,  the  Circuit  Court  of  Appeals  for 
the  Fourth  Circuit  held  that  the  offense  intended  to  be 
committed  as  the  result  of  the  conspiracy  need  not  be  de- 
scribed as  fully  as  would  be  required  in  an  indictment  in 
which  such  matter  was  charged  as  a  substantive  crime. 
To  the  same  effect  is  United  States  vs.  Stevens,  44  Fed- 
eral, 132.  In  United  States  vs.  Stamatopoulos,  164  Fed- 
eral, 524,  Judge  Chatfield,  in  passing  upon  a  demurrer, 
said : 

"The  indictment  sets  forth  a  conspiracy  to  defraud  the  United 
States,  and  it  is  unnecessary  to  allege  either  the  consummation  of 
the  fraud,  or  to  include  an  allegation  that  the  fraud  could  have  been 
accomplished  unless  detected.  It  is  sufficient  to  show  that  the  con- 
spiracy so  to  do  the  act  charged  constituted  a  fraud  upon  the  United 
States." 

§  183.  Venue. — The  venue  for  the  prosecution  may  be 
laid  in  the  District  in  which  the  overt  act  was  committed, 
and  it  does  not  matter  where  the  conspiracy  was  formed 
or  the  unlawful  agreement  entered  into;  and  where  the 
offense  has  been  commenced  in  one  district  and  consum- 
mated in  another,  the  venue  may  be  laid  and  the  trial  may 
be  had  in  either  district. 

Sufficient  to  Warrant  ConvicUon. — If  the  indictment 
alleges,  in  proper  terms,  the  formation  of  the  conspiracy 
for  either  one  of  the  inhibited  purposes  mentioned  in  the 
statute,  and  then  sets  out  the  offense  for  which  the  con- 
spiracy was  formed  with  sufficient  certainty  to  apprise 
the  defendant  thereof,  and  then  the  proof  shows  that  the 
conspiracy  existed  as  charged  in  the  indictment,  and  that 
if  such  conspiracy  existed,  the  overt  act  charged  was  com- 
mitted in  furtherance  of  such  conspiracy,  and  that  the 


368  Federal  Criminal  Law  Procedure. 

defendant  was  one  of  the  conspirators,  a  case  will  have 
been  made  out,  both  by  allegation  and  proof.  United 
States  vs.  Cassidy,  67  Federal,  698;  United  States  vs. 
Newton,  52  Federal,  275. 

§  183a.  Special  Charge  on  Venue. — The  defendant 
must  ask  an  affirmative  charge  on  venue  before  error  can 
be  laid  when  the  general  charge  of  the  Court  uses  the 
customary  language  with  reference  to  the  place  of  the 
commission  of  the  offense.  Lipman  vs.  U.  S.,  219  Federal, 
882. 

§  184.  Illustrative  Cases. — While  the  Courts  have 
held,  as  above  cited,  that  a  good  conspiracy  charge  will  be 
one  which  alleges  the  accomplishment  of  the  fraud  or 
fails  to  allege  its  accomplishment,  so,  also,  they  have  held 
that  a  conspiracy  may  be  charged,  though  the  indictment 
charges  the  accomplishment.  In  Scott  vs.  United  States, 
165  Federal,  172,  the  Circuit  Court  of  Appeals,  for  the 
Fifth  Circuit  held  that  an  indictment  will  lie  for  con- 
spiracy to  remove  distilled  spirits  on  which  the  tax  had 
not  been  paid,  in  violation  of  Section  3296,  although  it  is 
charged  that  the  purpose  of  the  conspiracy  was  accom- 
plished. 

In  United  States  vs.  Stevens,  44  Federal,  132,  it  was 
held  that  a  conspiracy  may  be  entered  into  even  when 
the  overt  act  constituting  the  criminal  offense  can  only 
be  done  by  one  of  the  parties  to  the  conspiracy;  as 
where  a  census  enumerator  and  another  conspired  to 
make  false  certificates  or  fictitious  returns.  The  same 
sort  of  an  offense  was  approved  in  the  Ching  case  by  a 
Circuit  Court  of  Appeals,  118  Federal,  538.  So,  also,  a 
conspiracy  may  be  laid  against  a  person  not  connected 
with  the  bank  for  conspiring  with  the  cashier  to  commit 
one  of  the  offenses  described  in  Section  5209.  U.  S.  vs. 
Martin,  4  Cliff.  (U.  S.),  156.  And  in  United  States  vs. 
Boyer,  4  Dill.,  407,  the  Court  held  that  a  conspiracy 
could  be  charged  against  persons  conspiring  with  a  bank- 
rupt to  commit  an  offense  thereunder,  even  if  it  could  be 
held  that  only  the  bankrupt  could  commit  the  offense 
there  charged  with  having  agreed  to  violate.  See  also  U. 
S.  vs.  Swett,  2  Hask.,  310,  28  Federal  Cases  No.  16427. 


Against  Operations  of  Government.  30'.  > 

In  Johnson  vs.  United  States,  158  Federal,  69,  the  Cir- 
cuit Court  of  Appeals  for  the  Fifth  Circuit,  it  seems  to 
the  writer,  held  contrary  to  the  above  views.  In  that 
case,  the  bankrupt,  his  trustee,  and  one  other,  were  in- 
dicted for  conspiring  to  conceal  from  the  Trustee,  one  of 
the  indicted  parties,  assets  of  the  bankrupt.  There  were 
convictions.  Upon  appeal,  the  Court  held  that  an  indict- 
ment will  not  lie  under  5440,  for  a  conspiracy  to  effect 
the  concealment  by  a  bankrupt,  of  property,  from  his 
trustee,  where  the  trustee,  is  himself  charged  as  one  of  the 
conspirators  and  the  averments  of  the  indictment  show 
that  there  was  in  fact  no  concealment  of  property  from 
him  and  no  purpose  that  there  should  be  such  conceal- 
ment. In  considering  that  case,  the  Court  cited  the  case 
where  Lord  Audley  was  convicted  of  rape  upon  his  wife; 
being  present,  aiding  and  abetting  one  of  his  minions  to 
perpetrate  this  monstrous  crime,  and  for  which  this  devil- 
crazed  nobleman  was  hung;  but  differentiated  that  case 
from  the  one  they  were  discussing,  and  said: 

"The  defect  in  the  indictment  is  not  that  it  charges  a  conspiracy  by 
three  persons  to  commit  an  offense  which  only  one  of  the  three  could 
commit.  That  may  not  be  a  defect.  The  fatal  defects  is  that  it 
charges  Johnson,  one  of  the  alleged  conspirators,  with  participation 
in,  and  knowledge  of,  a  transaction  which  could  only  be  an  offense 
against  the  law  when  it  was  concealed  from  him." 

In  United  States  vs.  Melfi,  118  Federal,  899,  there  was  a 
prosecution  against  conspirators  to  secure,  illegally,  nat- 
uralization papers,  but  the  Court  held  against  the  indict- 
ment, not  because  such  a  conspiracy  would  not  be  unlaw- 
ful, but  because  the  indictment  failed  to  allege  sufficient 
ingredients  of  the  statute  for  the  breaking  of  which  the 
conspiracy  was  formed. 

In  United  States  vs.  Clark,  164  Federal,  page  75,  the 
Court  upheld  a  prosecution  against  an  agent  of  a  railroad 
company  and  others  for  conspiring  to  issue  interstate 
freight  passes  in  the  name  of  the  railroad  to  those  not  en- 
titled thereto,  under  the  provisions  of  the  Hepburn  Act, 
June  29,  1906. 

In  United  States  vs.  Lonabaugh,  158  Federal,  314,  a 
prosecution  was  sustained  upon  a  conspiracy  to  induce 

24 


370  Federal  Criminal  Law  Procedure. 

the  Land  Department  of  the  United  States,  by  fraudulent 
means,  to  dispose  of  public  lands  in  a  way  not  authorized 
by  the  statute,  and  this  even  though  the  Government  re- 
ceived payment  for  the  lands,  and  suffered  no  pecuniary 
loss. 

In  United  States  vs.  Haas  et  al,  163  Federal,  908,  an  in- 
dictment was  sustained  which  charged  a  confederated  ef- 
fort to  deprive  the  national  government  of  the  right  and 
privilege  of  proper  service  in  the  Department  of  Agricul- 
ture, by  corrupting  an  employee  of  such  department,  and 
inducing  him  to  secretly  furnish  advance  information  of 
crop  conditions,  contrary  to  the  rules  of  the  department, 
and  to  issue  false  reports  to  the  public  as  to  such  condi- 
tions. The  main  offense  in  that  case  was  laid  under  the 
bribery  statute,  5451,  and  the  Court  held  that  an  Assistant 
Statistician  in  the  Department  of  Agriculture,  in  the  per- 
formance of  the  duties  with  which  he  was  charged  by  the 
rules  of  that  department,  acted  for  the  United  States  in  an 
official  function.  This  case  was  practically  affirmed,  and 
the  case  of  United  States  vs.  Haas,  167  Federal,  211,  over- 
ruled, by  the  Supreme  Court  of  the  United  States  in  Haas 
vs.  Henkle,  February  21,  1910.  The  Supreme  Court,  in 
passing  directly  upon  the  indictment,  uses  this  language: 

"These  counts  do  not  expressly  charge  that  the  conspiracy  included 
any  direct  pecuniary  loss  to  the  United  States;  but  as  it  is  averred 
that  the  acquiring  of  the  information  and  its  intelligent  computation, 
with  deductions,  comparisons,  and  explanations,  involved  great  ex- 
pense, it  is  clear  that  practices  of  this  kind  would  deprive  these  re- 
ports of  most  of  their  value  to  the  public,  and  degrade  the  Department 
in  general  estimation,  and  that  there  would  be  a  real  financial  loss. 
But  it  is  not  essential  that  such  a  conspiracy  should  contemplate  a 
financial  loss,  or  that  one  should  result.  The  statute  is  broad  enough 
in  its  terms  to  include  any  conspiracy  for  the  purpose  of  impairing, 
obstructing,  or  defeating  the  lawful  function  of  any  Department  of 
the  Government.  Assuming,  as  we  have,  for  it  has  not  been  challenged, 
that  this  statistical  side  of  the  Department  of  Agriculture  is  the 
exercise  of  a  function  within  the  purview  of  the  Constituion,  it  must 
follow  that  any  conspiracy  which  is  calculated  to  obstruct  or  impair 
its  efficiency  and  destroy  the  value  of  its  operations  and  reports,  as 
fair,  impartial,  and  reasonably  accurate,  would  be  to  defraud  the 
United  States,  by  depriving  it  of  its  lawful  right  and  duty  of  pro- 
mulgating or  diffusing  information  so  officially  acquired  in  the  way 
and  at  the  time  required  by  law  or  Departmental  regulation.     That  it 


Against  Operations  of  Government.  37] 

is  not  essential  to  charge  or  prove  an  actual  financial  or  poperty  loss 
to  make  a  case  under  the  statute,  has  been  more  than  once  ruled. 
Hyde  vs.  Shine,  199  U.  S.,  62;  U.  S.  vs.  Keitel,  211  U.  S.,  370;  Curley 
vs.  U.  S.,  130  Fed.,  1;    McGregor  vs.  U.  S.,  134  Fed.,  195." 

Iii  United  States  vs.  Hirsch,  100  U.  S.,  33,  the  Supreme 
Court  held  that  a  conspiracy  to  defraud  the  United  States 
out  of  duties  on  imported  merchandise  is  not  a  crime  aris- 
ing under  the  revenue  laws,  and  is,  therefore,  barred  by 
the  three  years  statute  of  limitations. 

For  other  cases  arising  under  the  old  section,  see 

United  States  vs.  Dietrich,  126  Federal,  664. 

Gantt  vs.  U.  S.,  108  Federal,  page  61; 

U.  S.  vs.  Bradford,  148  Federal,  413; 

U.  S.  vs.  Mitchell,  141  Federal,  666; 

Wright  vs.  United  States,  108  Federal,  805  (This  case 
approves  a  general  form  of  indictment) ;  Lehman  vs.  U. 
S.,  127  Federal,  41;  Conrad  vs.  U.  S.,  127  Federal,  798 
(That  was  a  conspiracy  to  violate  Section  3995,  or  in  other 
words  a  conspiracy  to  knowingly  and  wilfully  delay  the 
United  States  mail) ;  Wan  Din  vs.  United  States,  135  Fed- 
eral, 704,  (The  Court  sets  out  the  elements  of  the  con- 
spiracy); United  States  vs.  Curley,  122  Federal,  738;  af- 
firmed in  130  Federal,  page  2  (This  was  a  conspiracy  to 
violate  the  Civil  Service  Examination  Act) ;  U.  S.  vs. 
Richards,  149  Federal,  443.  In  Crawford  vs.  U.  S.,  an 
opinion  rendered  by  the  Supreme  Court  of  the  United 
States,  on  February  1,  1909;  sets  forth  the  elements  of  a 
conspiracy  under  this  section.  In  in  re  Miller,  114  Fed- 
eral, 963,  there  was  a  prosecution  for  conspiracy  to  return 
one  to  peonage.  See  United  States  vs.  Green,  115  Fed- 
eral, 343,  for  conspiring  to  conceal  assets  in  violation  of 
the  bankrupt  Act;  United  States  vs.  Goodsay,  164  Fed- 
eral, 157;  United  States  vs.  Biggs,  157  Federal,  264; 
United  States  vs.  Brace,  149  Federal,  874.  The  case  of 
Bradford  vs.  United  States,  129  Federal,  page  49,  was  a 
prosecution  for  conspiring  to  execute  straw  bail.  In  the 
case  of  United  States  vs.  Stevenson,  decided  by  the  Su- 
preme Court  of  the  United  States  in  November,  1909,  a 
conviction  for  a  conspiracy  to  violate  the  Immigration 
Act  was  sustained. 


372  Federal  Criminal  Law  Procedure. 

In  Williamson  vs.  U.  S.,  207  IT.  S.,  425,  52  Law  Ed., 
page  207,  the  Supreme  Court  reversed  and  remanded  a 
conviction  of  a  Congressman  for  conspiring  to  suborn  per- 
jury, in  proceedings  to  purchase  public  land,  but  held 
among  other  things,  that  an  indictment  alleging  a  con- 
spiracy to  suborn  perjury  need  not,  with  technical  pre- 
cision, state  all  the  elements  essential  to  the  commission 
of  the  crimes  of  subornation  of  perjury  and  of  perjury, 
and  that  the  precise  persons  to  be  suborned,  or  the  time 
and  place  of  such  suborning  need  not  be  agreed  upon  in 
the  minds  of  the  conspirators,  in  order  to  constitute  the 
crime  of  conspiracy  to  suborn  perjury  in  proceedings  for 
the  purchase  of  public  land.  U.  S.  vs.  Railey,  173  Fed- 
eral, 159;  Richards  vs.  U.  S.,  175  Federal,  911;  U.  S.  vs. 
Kane,  23  Federal,  748;  U.  S.  vs.  Milner,  36  Federal,  89Q. 
In  United  States  vs.  Keitel,  211  U.  S.,  370,  the  Supreme 
Court  held  that  a  charge  of  conspiracy  to  defraud  the 
United  States  can  be  predicated  on  acts  made  criminal  af- 
ter the  enactment  of  the  statute.  This  case  was  reversed, 
on  some  other  minor  points,  United  States  vs.  Keitel,  157 
Federal,  396.  In  United  States  vs.  Biggs,  211  U.  S.,  which 
was  a  writ  of  error  by  the  United  States  from  the  sustain- 
ing of  a  demurrer  to  an  indictment  brought  for  a  con- 
spiracy to  defraud  the  United  States  of  public  lands,  re- 
ported in  United  States  vs.  Biggs,  157  Federal,  264,  the 
Supreme  Court  affirmed  the  decision  of  the  lower  Court, 
and  held  that  an  indictment  for  conspiracy  to  defraud  the 
United  States  by  improperly  obtaining  title  to  public 
lands,  will  not  lie  under  5440,  where  the  only  acts  charged 
were  permissible  under  the  land  laws.  In  other  words, 
the  acts  charged  in  the  indictment  appeared  to  be  lawful 
under  the  laws  relating  to  such  lands.  United  States  vs. 
Briton,  108  U.  S.,  192;  Mackin  vs.  U.  S.,  117  U.  S.,  348;  U. 
S.  vs.  Hess,  124  U.  S,,  483 ;  in  re  Gov,  312  Federal,  794 ;  127 
U.  S.,  731;  U.  S.  vs.  Perrin,  131  U.  S.,  55;  U.  S.  vs.  Barber, 
140  U.  S.,  177 ;  Pettibone  vs.  U.  S.,  148  U.  S.,  197 ;  ex  parte 
Lennon,  150  IT.  S.,  393;  Dill  vs.  U.  S.,  152  U.  S.,  539;  Ban- 
non  vs.  U.  S.,  156  U.  S.,  464;  Stokes  vs.  U.  S.,  157  U.  S., 
187;  France  vs.  U.  S.,  164  U.  S.,  696.  In  the  case  of  Craw- 
ford vs.  U.  S.,  212  U.  S.,  page  183,  the  Supreme  Court  sus- 


AcxAinst  Operations  of  Government.  37:! 

tained  the  sufficiency  of  the  indictment,  but  reversed  the 
case  on  other  points.  The  prosecution  grew  out  of  a  con- 
spiracy between  the  defendant  and  a  Government  official. 
by  which  the  Government  would  be  defrauded  by  means 
of  a  contract  between  the  Postal  Device  and  Lock  Com- 
pany, a  corporation,  and  the  Post-office  Department  of 
the  United  States,  by  which  the  company  was  to  furnish 
certain  satchels  to  the  Department  for  the  use  of  the  let- 
ter carriers  in  the  free  delivery  system  of  the  United 
States.  U.  S.  vs.  Bridgeman,  140  Federal,  577;  U.  S.  vs. 
Marx,  122  Federal,  964;  U.  S.  vs.  McKinley,  126  Federal, 
242;  U.  S.  vs.  Wilson,  60  Federal,  890;  U.  S.  vs.  Debs,  63 
Federal,  436;  Huntington  vs.  U.  S.,  175  Federal,  950. 

§  184a.  Illustrative  Cases  Continued. — Scheme  to  se- 
cure reduced  postage  rate  for  newspapers  may  be  subject 
of  but  when  it  is  alleged  that  the  rate  sought  to  be  pro- 
cured is  no  less  than  a  regular  rate  then  authorized  for 
second  class  matter,  no  offense  is  charged.  U.  S.  vs.  At- 
lanta Journal  Co.  185  Federal,  656,  affirmed  in  same  case, 
210  Federal,  275.  A  conspiracy  to  transport  explosives 
in  violation  of  Section  232,  interstate  shipment  of  ex- 
plosives, is  a  violation  of  this  section.  Ryan  vs.  U.  S.,  216 
Federal,  13. 

A  conspiracy  to  secure  for  a  postmaster  a  larger  salary 
by  purchasing  at  his  office  large  quantities  of  postage 
stamps  for  use  outside  of  territory  served  by  such  office 
was  not  a  conspiracy  to  defraud  the  United  States,  since 
as  the  statute  makes  the  postmaster's  salary  dependent 
on  the  gross  receipts,  without  excluding  receipts  from 
such  sales,  the  postmaster  was  legally  entitled  to  the 
salary  which  it  was  the  object  of  the  alleged  conspiracy  to 
secure,  and  a  conspiracy  to  obtain  by  improper  methods 
what  one  is  legally  entitled  to  is  not  punishable  as  a  con- 
spiracy to  defraud.    U.  S.  vs.  Foster,  211  Federal,  206. 

Woman  who  is  victim  in  white  slave  violation  may  also 
be  conspirator  under  this  section.  U.  S.  vs.  Holte,  236  U. 
S.,  140.  Agreement  to  defraud  Government  through  pur- 
chases for  the  commissary  department.  U.  S.  vs.  Burke, 
218  Federal,  83.  Conspiracy  to  defraud  the  United  States 
by  collusive  bids  for  coal,  Houston  vs.  U.  S.,  217  Federal, 


374  Federal  Criminal  Law  Procedure. 

852.  A  conspiracy  to  defraud  of  customs  dues.  U.  S.  vs. 
Sherlin,  212  Federal,  343.  Conspiracy  to  liberate  pris- 
oner, ex  parte  Lyman,  202  Federal,  303.  See  also  IT.  S.,  vs. 
Munday,  186  Federal,  375.  Lipman  vs.  U.  S.,  219  Fed- 
eral, 882.  Conspiracy  to  conceal  property  from  bank- 
ruptcy trustee,  Radin  vs.  U.  S.,  189  Federal,  568. 

§  185.  Bribery  of  United  States  Officer.— Section  5451 
of  the  old  statutes  is  re-enacted  into  Section  39  of  the 
new  Code  in  the  following  words: 

"Whoever  shall  promise,  offer,  or  give,  or  cause  or  procure  to  be 
promised,  offered,  or  given,  any  money  or  other  thing  of  value,  or 
shall  make  or  tender  any  contract,  undertaking,  obligation,  gratuity, 
or  security  for  the  payment  of  money,  or  for  the  delivery  or  con- 
veyance of  anything  of  value,  to  any  officer  of  the  United  States,  or 
to  any  person  acting  for  or  on  behalf  of  the  United  States  in  any 
official  function,  under  or  by  authority  of  any  department  or  office 
of  the  Government  thereof,  or  to  any  officer  or  person  acting  for  or 
on  behalf  of  either  House  of  Congress,  or  of  any  Committee  of  either 
House,  or  both  Houses  thereof,  with  intent  to  influence  his  decision 
or  action  on  any  question,  matter,  cause,  or  proceeding  which  may 
at  any  time  be  pending,  or  which  may  by  law  be  brought  before  him 
in  his  official  capacity,  or  in  his  place  of  trust  or  profit,  or  with  intent 
to  influence  him  to  commit,  or  aid  in  committing,  or  to  collude  in,  or 
allow,  any  fraud,  or  make  opportunity  for  the  commission  of  any 
fraud,  on  the  United  States,  or  to  induce  him  to  do  or  omit  to  do 
any  act  in  violation  of  his  lawful  duty,  shall  be  fined  not  more  than 
three  times  the  amount  of  money  or  value  of  the  thing  so  offered, 
promised,  given,  made,  or  tendered,  or  caused  or  procured  to  be  so  offer- 
ed, promised,  given,  made,  or  tendered,  and  imprisoned  not  more  than 
three  years," 

One  must  be  a  Federal  official  or  some  other  person  per- 
forming an  official  function,  and  he  must  be  offered  some 
gratuity  or  thing  of  value  to  assist  in  the  defrauding  of 
the  United  States  in  some  manner,  or  to  fail  to  perform 
his  lawful  duty,  before  he  can  be  guilty  of  the  crime  al- 
leged in  the  foregoing  section.  For  instance,  in  the  case 
of  the  United  States  vs.  Gibson,  47  Federal,  833,  the  Court 
quashed  an  indictment  under  this  section,  which  set  out  in 
substance  that  the  defendant  had  offered  a  bribe  to  an  in- 
ternal revenue  officer  to  set  fire  to  a  distillery  within  the 
limits  of  a  State.  He  very  properly  held  that  this  was 
the  offering  of  a  bribe  to  perform  an  act  which  was  not  in 


Against  Operations  of  Government.  375 

any  sense  within  the  official  function  of  the  revenue  offi- 
cer, and,  therefore,  not  an  offense  under  the  section.  The 
crime  of  arson,  of  course,  unless  committed  upon  some 
Government  reservation,  is  not  cognizable  in  the  United 
States  Courts,  and  is  not  a  United  States  offense.  So, 
also,  in  the  case  of  United  States  vs.  Boyer,  it  was  deter- 
mined that  an  Inspector  of  the  Agriculture  Department  of 
the  United  States,  charged  with  the  enforcement  of  un- 
constitutional regulations,  and  offered  a  bribe  not  to  per- 
form such  regulations,  the  offering  of  such  a  bribe  was  not 
an  offense  under  5451,  for  the  reason  that  the  Inspector,  in 
the  failure  to  perform  an  unconstitutional  duty,  would 
not  in  any  sense,  defraud  the  United  States,  nor  fail  to 
perform  an  act  which  it  was  his  lawful  duty  to  perform. 
In  United  States  vs.  Kessel,  62  Federal,  57,  and  United 
States  vs.  Van  Leuven,  62  Federal,  62,  District  Judge 
Shiras,  in  passing  upon  old  Section  5501,  determined  that 
a  member  of  a  Board  of  Examining  Surgeons  is  a  person 
acting  in  behalf  of  the  United  States  in  an  official  capaci- 
ty, and,  therefore,  subject  to  an  indictment  for  receiving 
a  bribe.  The  same  reasoning  adopted  by  the  judge  in 
those  two  cases  will  apply  to  offenses  under  Section  5451. 

The  case  of  United  States  vs.  Ingham,  97  Federal,  935, 
was  a  prosecution  based  upon  an  attempt  to  bribe  a  Se- 
cret Service  operative  employed  by  the  Secretary  of  the 
Treasury;  and  in  passing  directly  upon  the  question  as 
to  whether  or  not  such  operative  was  an  officer  of  the 
United  States  within  the  necessary  meaning  of  5451,  the 
Court  held  that  he  was  not  such  an  officer,  but  that  the 
prosecution  would  lie  under  the  phrase  in  the  statute, 
"official  function,"  and  held  that  official  function,  as 
spoken  of  in  the  statute  is  not  necessarily  a  function  be- 
longing to  an  office  held  by  a  person  acting  on  behalf  of 
the  United  States.  It  may  also  be  a  function  belonging 
to  an  office  held  by  his  superior  which  function  has  been 
committed  to  the  subordinate,  whether  he  be  also  an  of- 
ficer or  a  mere  employee  for  the  purpose  of  executing  the 
function. 

In  the  case  of  United  States  vs.  Green,  136  Federal, 
618,  the  doctrine  was  announced  that  the  giving  of  a 


376  Federal,  Criminal  Law  Procedure. 

check  as  a  bribe  will  not  necessarily  be  an  offense  under 
the  statute,  unless  there  be  sufficient  allegations  in  the 
indictment  to  show  that  the  check  was  good,  and  that 
the  bank  upon  which  it  was  drawn  was  a  going  concern, 
and  that  the  same  would  be  honored,  and  other  allega- 
tions to  show  that  as  a  matter  of  fact  the  check  was  valu- 
able. A  bank  check  not  thus  defined  in  the  bill  of  in- 
dictment is  not  an  obligation  for  the  payment  of  money, 
within  the  legal  meaning  of  such  term,  as  used  in  the 
section,  and  the  tendering  by  a  person  of  his  personal 
check,  drawn  on  a  bank,  and  payable  to  an  officer  of  the 
United  States  to  such  officer,  with  intent  thereby  to  affect 
his  official  action,  does  not  constitute  the  crime  of  bribery, 
since  the  check  made  and  delivered  for  such  illegal  pur- 
pose is  void  and  not  within  any  of  the  classes  of  instru- 
ments enumerated  in  the  statute.  In  the  case  of  Vernon 
vs.  U.  S.,  146  Federal,  121,  the  Circuit  Court  of  Appeals 
for  the  Eighth  Circuit  sets  out  a  count  of  an  indictment 
under  this  section.  That  was  a  prosecution  for  an  alleg- 
ed attempt  to  bribe  an  agent  of  the  Treasury  Department, 
charged  with  the  location  of  public  buildings.  The  evi- 
dence, however,  was  held  to  be  insufficient  by  the  Court 
of  Appeals. 

The  Supreme  Court,  in  the  case  of  Palliser  vs.  United 
States  136  U.  S.,  268;  34  Law  Ed.,  514,  held  that  a  letter 
written  and  sent  from  New  York  to  a  postmaster  in  Con- 
necticut, asking  him  to  put  postage  stamps  on  circulars 
and  send  them  out  at  the  rate  of  fifty  to  one  hundred 
daily,  and  promising  him  that  if  he  would  do  so,  the  writ- 
er of  the  letter  would  remit  to  him  the  price  of  stamps, 
was  a  tender  of  a  contract  for  the  payment  of  money 
to  induce  him  to  sell  postage  stamps  for  credi+  in  viola- 
tion of  his  lawful  duty,  and  contrary  to  Section  5451: 
and  such  an  offer  for  an  unlawful  sale  of  postage  stamps 
on  credit  is  not  the  less  within  the  statute  because  the 
postmaster's  commission  on  the  sale  would  be  no  greater 
than  upon  a  lawful  sale  for  cash. 

§  185a.  Officer. — An  immigrant  inspector  is  an  officer 
within  the  meaning  of  Section  39.  Becharias  vs.  U.  S., 
208  Federal,  143. 


Against  Operations  of  Government.  377 

Sec.  185  b.     Bribery  etc.,  Continued. 

A  porter  of  a  railway  train  while  under  government 
control  is  not  and  "officer",  Kricliman  vs.  U.  S.,  41  Sup. 
Ct.  Rep.  514,  reversing  U.  S.  vs.  Kricliman  in  256  F.  974, 

§  186.  Unlawfully  Taking  or  Using  Papers  Relating 
to  Claims.— Section  40  reads  as  follows: 

"Sec.  40.  Whoever  shall  take  and  carry  away,  without  authority 
from  the  United  States,  from  the  place  where  it  has  been  filed,  lodged, 
or  deposited  or  where  it  may  for  the  time  being  actually  be  kept  by  au- 
thority  of  the  United  States,  any  certificate,  affidavit  written  statement 
of  facts,  power  of  attorney,  receipt,  voucher,  assignment,  or  other  docu- 
ment, record,  file,  or  paper,  prepared,  fitted,  or  intended  to  be  used  or 
presented  in  order  to  procure  the  payment  of  money  from  or  by  the 
United  States,  or  any  officer  or  agent  thereof,  or  the  allowance  or 
payment  of  the  whole  or  any  part  of  any  claim,  account,  or  demand 
against  the  United  States,  whether  the  same  has  or  has  not  already 
been  so  used  or  presented,  and  whether  such  claim,  account,  or  de- 
mand, or  any  part  thereof,  has  or  has  not  already  been  allowed  or 
paid;  or  whoever  shall  present,  use,  or  attempt  to  use,  any  such  docu- 
ment, record,  file,  or  paper  so  taken  and  carried  away,  in  order  to 
procure  the  payment  of  any  money  from  or  by  the  United  States,  or 
any  officer  or  agent  thereof,  or  the  allowance  or  payment  of  the 
whole  or  any  part  of  any  claim,  account,  or  demand  against  the 
United  States,  shall  be  fined  not  more  than  five  thousand  dollars,  or 
imprisoned  not  more  than  ten  years,  or  both." 

§  187.  Persons  Interested  Not  to  Act  as  Agents  of  the 
Government. — Section  1783  of  the  old  statutes  becomes 
Section  41  of  the  new  Code  in  the  following  words: 

"Sec.  41.  No  officer  or  agent  of  any  corporation,  joint  stock  com- 
pany, or  association,  and  no  member  or  agent  of  any  firm,  or  person 
directly  or  indirectly  interested  in  the  pecuniary  profits  or  contracts 
of  such  corporation,  joint  stock  company,  association,  or  firm,  shall 
be  employed  or  shall  act  as  an  officer  or  agent  of  the  United  States 
for  the  transaction  of  business  with  such  corporation,  joint  stock 
company,  association,  or  firm.  Whoever  shall  violate  the  provision 
of  this  section  shall  be  fined  not  more  than  two  thousand  dollars 
and  imprisoned  not  more  than  two  years." 

Old  Section  1783  applied  only  to  officers  of  "banking 
or  other  commercial"  corporations,  but  in  the  new  statute 
these  words  have  been  omitted,  so  that  the  section,  as 
it  now  stands  is  applicable  to  the  officers  of  any  corpora- 
tion.    It  has  likewise  been  made  more  comprehensive, 


378  Federal  Criminal  Law  Procedure. 

in  that  it  now  covers  officers  and  agents  of  any  "  joint 
stock  company  or  association." 

§  188.  Enticing  Desertions  from  the  Military  or  Naval 
Service. — Section  42  of  the  new  Code  re-enacts  the  sub- 
stantial provisions  of  Sections  1553  and  5455  of  the  old 
Code  in  the  following  words: 

"Sec.  42.  Whoever  shall  entice  or  procure,  or  attempt  or  endeavor 
to  entice  or  procure,  any  soldier  in  the  military  service,  or  any  sea- 
man or  other  person  in  the  naval  service  of  the  United  States,  or 
who  has  been  recruited  for  such  service,  to  desert  therefrom,  or 
shall  aid  any  such  soldier,  seaman,  or  other  person  in  deserting  or 
in  attempting  to  desert  from  such  service;  or  whoever  shall  harbor, 
conceal,  protect,  or  assist  any  such  soldier,  seaman,  or  other  person 
who  may  have  deserted  from  such  service,  knowing  him  to  have 
deserted  therefrom,  or  shall  refuse  to  give  up  and  deliver  such  sol- 
dier, seaman,  or  other  person  on  the  demand  of  any  officer  authorized 
to  receive  him,  shall  be  imprisoned  not  more  than  tliree  years  and 
fined  not  more  than  two  thousand  dollars." 

The  only  substantial  addition  is  the  word  "seaman," 
which  the  old  statutes  did  not  include.  In  the  case  of 
Kurtz  vs.  Moffitt,  115  U.  S.,  487,  the  Supreme  Court  held 
that  a  deserter  from  the  United  States  army  could  not  be 
arrested  by  a  police  officer  or  private  citizen  without  war- 
rant or  authority  from  the  United  States. 

Sec.  188  a.     Enticing  Desertions  Continued. 

"Harbor"  means  some  physicial  act,  Firpo  vs.  U.  S., 
261  F.  850. 

§  189.  Enticing  Away  Workman. — Section  43  of  the 
new  Code  re-enacts  the  provisions  of  Sections  1668  of 
the  old  statutes,  adding  thereto  the  word  "artificer" 
instead  of  the  word  "armorer,"  and  is  in  the  following 
words: 

"Sec.  43.  Whoever  shall  procure  or  entice  any  artificer  or  work- 
man retained  or  employed  in  any  arsenal  or  armory,  to  depart  from 
the  same  during  the  continuance  of  his  engagement,  or  to  avoid  or 
break  his  contract  with  the  United  States;  or  whoever,  after  due 
notice  of  the  engagement  of  such  workman  or  artificer,  during  the 
continuance  of  such  engagement,  shall  retain,  hire,  or  in  anywise 
employ,  harbor,  or  conceal  such  artificer  or  workman,  shall  t»e  fined 
not  more  than  fifty  dollars,  or  imprisoned  not  more  than  three 
months,   or   both." 


Against  Operations  of  Government.  379 

§  190.  Injuries  to  Fortifications,  Harbor  Defenses, 
Etc.— Section  44  of  the  new  Code  re-enacts  the  meat  of  the 
Act  of  July  7,  1898;  Second  Supplement,  885,  and  sim- 
plifies the  original  Act  by  omitting  the  words  "wantonly 
or  maliciously"  before  "trespass,"  since  authorities  are 
a  unit  that  the  word  "wilful"  will  include  any  wanton 
or  malicious  act,  and  is  in  the  following  words: 

"Sec.  44.  Whoever  shall  wilfully  trespass  upon,  injure,  or  destroy 
any  of  the  works  or  property  or  material  of  any  submarine  mine  or 
torpedo,  or  fortification  or  harbor-defense  system  owned  or  con- 
structed or  in  process  of  construction  by  the  United  States,  or  shall 
wilfully  interfere  with  the  operation  or  use  of  any  such  submarine 
mine,  tropedo,  fortification,  or  harbor-defense  system,  shall  be  fined 
not  more  than  five  thousand  dollars,  or  imprisoned  not  more  than 
five  years,  or  both." 

Sec.  190  a.  Injuries  to  Fortifications,  etc., 
Section  44  has  been  greatly  enlarged  upon  by  the  Acts 
of  May  22,  1917,  and  of  March  4,  1917.  See  page  1683, 
1918  Complied  Statutes,  Sec.  10208,  the  punishment  con- 
tinues the  same  but  the  protection  extends  to  all  for- 
tifications and  harbors  and  defenses,  including  the  canal 
zone,  and  of  any  submarine  mine  or  torpedo  or  harbor- 
defense  system  as  well  as  any  order  or  regulation  of  the 
President  governing  persons  or  vessels  within  the  limits 
of  defensive  sea  areas. 

§  191.  Unlawfully  Entering  Upon  Military  Reserva- 
tion, Fort,  Etc. — Section  45  of  the  new  Code  is  an  en- 
tirely new  Act,  and  is  in  the  following  words: 

"Sec.  45.  Whoever  shall  go  upon  any  military  reservation,  -army 
post,  fort,  or  arsenal,  for  any  purpose  prohibited  by  law  or  military 
regulation  made  in  pursuance  of  law,  or  whoever  shall  re-enter  or  be 
found  within  any  such  reservation,  post,  fort,  or  arsenal,  after  having 
been  removed  therefrom  or  ordered  not  to  re-enter  by  any  officer  or 
person  in  command  or  charge  thereof,  shall  be  fined  not  more  than 
five   hundred   dollars,   or   imprisoned   not   more   than   six   months,   or 

both." 

§  192.  Robbery  or  Larceny  of  Personal  Property  of 
the  United  States.— Old  Section  5456  is  re-enacted  into 
new  Section  46,  in  the  following  words: 


380  Federal  Criminal  Law  Procedure, 

"Sec.  46.  Whoever  shall  rob  another  of  any  kind  or  description 
of  personal  property  belonging  to  the  United  States,  or  shall  felon- 
iously take  and  carry  away  the  same,  shall  be  fined  not  more  than 
five  thousand  dollars,  or  imprisoned  not  more  than  ten  years,  or 
both." 

In  the  case  of  Jolly  vs.  United  States,  170  Federal,  402; 
42  Law  Ed.,  185,  the  Supreme  Court  held  that  there  are 
two  distinct  offenses  mentioned  in  the  statute:  one  is 
the  offense  of  robbery,  and  the  other  is  the  crime  of 
feloniously  taking  and  carrying  away  any  kind  or  dis- 
cription  of  personal  property  belonging  to  the  United 
States.  This  is  a  distinct  and  separate  offense  from  that 
of  robbery.  "If  the  statute  required  the  taking  to  be 
forcible  in  all  cases,  the  language  providing  against  the 
felonious  taking  and  carrying  away  of  the  personal  prop- 
erty of  the  United  States  would  be  surplusage,  the  forci- 
ble taking  being  already  implied  and  included  in  the 
use  of  the  word  'rob';  but  in  addition  to  robbery,  the 
offense  of  feloniously  (not  forcibly)  taking  the  personal 
property  of  the  United  States,  is  created." 

Postage  stamps  which  have  not  been  issued  or  sold, 
and  are  in  the  possession  of  the  Government,  are  per- 
sonal property  belonging  to  the  United  States  within 
the  meaning  of  this  section,  which  makes  it  a  crime  to 
feloniously  take  and  carry  away  such  property. 

Under  authority  of  United  States  vs.  Jones,  69  Federal, 
973,  a  count  under  this  statute  may  be  joined  with  a 
count  under  another  statute  for  a  separate  offense,  when 
the  offense  is  the  same  transaction.  In  that  case,  Judge 
Hawley  held  that  it  was  immaterial  that  one  might  be 
classed  as  larceny  and  the  other  as  embezzlement,  or 
that  the  punishment  was  different.  That  case  also  gives 
a  form  of  indictment. 

§  193.  Embezzling,  Stealing,  Etc.,  Public  Property. — 
New  Section  47  re-enacts  a  part  of  the  Act  of  March  3, 
1875;  First  Supplement,  page  88,  in  the  following  words: 

"Sec.  47.  Whoever  shall  embezzle,  steal,  or  purloin  any  money, 
property,  record,  voucher,  or  valuable  thing  whatever,  of  the  moneys, 
goods,  chatties,  records,  or  property  of  the  United  States,  shall  be 
fined  not  more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  five  years,  or  both." 


Against  Operations  of  Government.  381 

In  drafting  indictments  for  the  various  offenses  creat- 
ed by  this  section,  to  wit,  the  offenses  of  embezzlement, 
larceny,  and  purloining,  it  is  believed  that  it  will  be 
necessary  to  set  out  the  elements  of  these  particular  of- 
fenses as  understood  in  the  Common  Law,  for  the  reason 
that  the  statute  itself  does  not  specify  just  what  acts 
shall  constitute  the  offense  therein  denominated.  The 
cases  of  Moore  vs.  United  States,  160  U.  S.,  268;  40  Law 
Ed.,  422,  and  Faust  vs.  United  States,  163  U.  S.,  452;  41 
Law  Ed.,  page  224,  will  be  instructive  in  determining  the 
principles  that  must  be  adhered  to  in  setting  out  offenses 
under  this  statute.  For  the  crime  of  embezzlement,  of 
course,  the  indictment  must  allege  that  the  sum  alleged 
to  have  been  embezzled  came  into  the  possession  of  the 
defendant  in  the  capacity  in  which  he  was  an  employee 
of  the  United  States;  that  is,  as  assistant,  clerk,  or  em- 
ployee in  whatever  department  of  the  Government  he 
served.  Want  of  consent  of  the  postmaster  to  embezzle- 
ment of  money-order  funds  by  his  assistant  is  not  nec- 
essary to  make  the  latter  liable  for  the  crime,  under  the 
authority  of  Faust  vs.  United  States,  cited  supra. 

It  was  held  in  Dimmick  vs.  United  States,  135  Federal, 
257,  that  an  indictment  which  charged  the  defendant 
with  stealing  money  "belonging  to"  the  United  States 
sufficiently  averred  the  ownership  of  the  property  stolen. 

Of  course,  it  is  necessary  to  allege  specific  intent  before 
the  offenses  here  denominated  shall  be  properly  plead. 
As  was  well  said  in  United  States  vs.  De  Groat,  30  Fed- 
eral, 764,  the  Federal  Criminal  Jurisprudence  is  entire- 
ly destitute  of  any  substratum  of  a  Common  Law  of 
crimes  and  misdemeanors  upon  which  to  draw  for  sup- 
plying elements  of  the  offense,  and  the  Courts  look  only 
at  the  statute,  using  the  Common  Law,  if  necessary,  to 
furnish  a  definition  of  the  terms  used,  but  never  any  in- 
gredient of  the  offense.  That  case  will  be  recalled  as  an 
indictment  for  having  stolen  papers  which  were  public 
records,  but  the  facts  showed  that  they  were  stolen  from 
a  barn  where  they  were  stored,  under  the  belief  that  they 
were  old  papers,  and  without  knowledge  of  the  fact  that 


382  Federal  Criminal  Law  Procedure. 

they  were  public  records,  and  the  Court  ordered  a  verdict 
of  not  guilty. 

Sec.  193  a.  Embezzling,  Stealing,  etc.,  Public  Proper- 
ty, Continued. 

Section  47  of  the  Code  is  in  addition  to  Sec.  36  which 
we  have  just  discovered  was  inoperative  Edwards  vs. 
U.  S.,  266  F.  848. 

The  indictment  must  charge  that  the  property  was 
United  States  property  and  it  is  insufficient  to  say  that  it 
was  requisitioned,  Thompson  vs.  U.  S.,  256  F.  616. 

Under  this  section  the  court  has  held  that  a  prosecu- 
tion may  be  had  for  theft  of  an  interstate  shipment  when 
the  railroads  were  in  the  hands  of  the  government,  Kam- 
beitz  vs.  U.  S.,  262  F.  378. 

For  illustrative  cases  see  Schell  vs.  U.  S.,  261  F.  593; 
Clark  vs.  U.  S.,  268  F.  329,  this  last  case  is  for  theft  of  a 
mail  carrier's  check. 

§  194.  Receivers,  Etc.,  of  Stolen  Public  Property. — 
Section  48  of  the  new  Code  enacts  the  substantial  fea- 
tures of  the  Act  of  March  3,  1875;  First  Supplement,  88, 
and  is  in  the  following  words: 

"Sec.  48.  Whoever  shall  receive,  conceal,  or  aid  in  concealing  or 
shall  have  or  retain  in  his  possession  with  intent  to  convert  to  his 
own  use  or  gain,  any  money,  property,  record,  voucher,  or  valuable 
thing  whatever,  of  the  moneys,  goods,  chattels,  records,  or  property 
of  the  United  States,  which  has  theretofore  been  embezzled,  stolen 
or  purloined  by  any  other  person,  knowing  the  same  to  have  been  so 
embezzled,  stolen,  or  purloined,  shall  be  fined  not  more  than  five  thous- 
and dollars,  or  imprisoned  not  more  than  five  years,  or  both;  and 
such  person  may  be  tried  either  before  or  after  the  conviction  of  the 
principal  offender." 

This  statute  leaves  out  that  provision  of  the  old  statute 
which  made  the  judgment  of  conviction  of  the  principal 
conclusive  evidence  in  the  prosecution  against  such  re- 
ceiver. That  provision  was  declared  to  be  unconstitu- 
tional by  the  Supreme  Court  in  the  case  of  Kirby  vs. 
United  States,  174  U.  S.,  47;  Book  43  Law  Ed.,  page  890. 
In  that  case,  the  Supreme  Court  held  that  the  provision 
that  the  judgment  of  conviction  against  the  principal 
felons  shall  be  evidence  in  the  prosecution  against  the 
receiver  of  the  property  of  the  United  States  alleged  to 


Against  Operations  of  Government.  383 

have  been  embezzled,  stolen,  or  purloined,  is  in  violation 
of  the  clause  of  the  United  States  Constitution  that  in 
criminal  prosecutions  the  accused  shall  be  confronted 
with  the  witnesses  against  him. 

Allegations  of  Ownership.— Under  the  authority  of  the 
Kirby  case,  cited  above,  it  is  sufficient  if  an  indictment 
for  receiving  stolen  property  of  the  United  States  alleges 
its  ownership  when  it  was  feloniously  received  by  the 
accused,  by  alleging  that  the  property  was  that  of  the 
United  States  when  stolen,  and  was  stolen  two  days 
previously  to  its  being  received  by  the  defendant,  and 
that  he  received  it  knowing  that  it  had  been  stolen.  It 
was  further  held  in  that  case  that  the  indictment  need 
not  state  from  whom  the  accused  received  it  or  need  not 
state  that  the  name  of  such  person  is  unknown  to  the 
grand  jurors. 

An  indictment  under  this  section  would  be  entirely  in- 
sufficient that  did  not  allege  knowledge  on  the  part  of  the 
receiver,  and  the  words  "unlawfully,  knowingly,  and  wil- 
fully" should  be  used. 

§  195.  Timber  Depredations  on  Public  Lands.— The 
Act  of  August  4,  1892,  27  Statutes  at  Large,  348,  Second 
Supplement,  65,  extended  the  Act  of  June  3,  1878,  20 
Statute  at  Large,  90,  First  Supplement,  168,  to  include 
all  the  public  land  States,  and  these  Acts  are  substan- 
tially re-enacted  into  new  Section  49,  in  the  following 
words: 

"Sec.  49.  Whoever  shall  cut,  or  cause  or  procure  to  be  cut,  or  shall 
wantonly  destroy,  or  cause  to  be  wantonly  destroyed,  any  timber 
growing  on  the  public  lands  of  the  United  States;  or  whoever  shall 
remove,  or  cause  to  be  removed,  any  timber  from  said  public  lands, 
with  intent  to  export  or  to  dispose  of  the  same;  or  whoever,  being 
the  owner,  master,  or  consignee  of  any  vessel,  or  the  owner,  director, 
or  agent  of  any  railroad,  shall  knowingly  transport  any  timber  so 
cut  or  removed  from  said  lands,  or  lumber  manufactured  therefrom, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  one  year,  or  both.  Nothing  in  this  section  shall  prevent 
any  miner  or  agriculturalist  from  clearing  his  land  in  the  ordinary 
working  of  his  mining  claim,  or  in  the  preparation  of  his  farm  for 
tillage,  or  from  taking  the  timber  necessary  to  support  his  improve- 
ments, or  the  taking  of  timber  for  the  use  of  the  United  States.  And 
nothing  in  this  section  shall  interfere  with  or  take  away  any  right 


384  Federal  Criminal  Law  Procedure. 

or  privilege  under  any  existing  law  of  the  United   States  to   cut  or 
remove  timber  from  any  public  lands." 

Some  of  the  cases  decided  by  the  Courts  under  some  of 
the  timber  statutes  of  the  old  Code  will  be  of  assistance  in 
determining  some  of  the  elements  of  this  new  section. 
For  instance,  in  United  States  vs.  Stores,  14  Federal,  824, 
it  was  determined  that  the  term  "timber,"  as  used  in  Sec- 
tion 2461  of  the  Revised  Statutes,  applies  not  alone  to 
large  trees  fit  for  house  or  ship-building,  but  includes 
trees  of  any  size,  of  a  character  or  sort  that  may  be  used 
in  any  kind  of  manufacture,  or  the  construction  of  any 
article;  and  it  was  also  there  determined  that  the  using 
of  trees  for  fire-wood  or  burning  into  charcoal  was  no 
justification  for  the  cutting. 

In  United  States  vs.  Garretson,  42  Federal,  22,  the  Dis- 
trict Judge  held,  on  demurrer,  that  the  general  public 
domain  is  open  to  private  entry,  and  lands  cannot  be  said 
to  be  reserved  for  such  entry.  The  lands  reserved  are 
thus  severed  from  the  mass  of  public  lands,  and  appro- 
priated for  Government  purposes. 

In  a  prosecution  under  Old  Section  5388,  as  amended 
by  the  Act  of  June  4,  1888,  which  forbade  the  cutting  or 
wanton  destruction  of  timber  upon  military  or  Indian 
Reservation,  the  Court,  in  the  case  of  the  United  States 
vs.  Konkapot,  43  Federal,  64,  held  that  that  statute  did 
not  apply  to  one  who  removed  and  used  for  building 
purposes  timber  which  had  been  cut  on  an  Indian  Re- 
servation by  another  person  without  his  aid  or  encourage- 
ment. Of  course,  the  present  section  not  only  covers  the 
cutting  aand  causing  or  procuring  to  be  cut,  or  wanton 
destruction,  but  also  removal  of  any  timber  from  such 
public  lands. 

Intent. — Prosecutions  under  this  section  should  include 
the  allegation  of  knowledge  and  wilfulness,  and  a  depre- 
dation by  mistake,  it  is  thought,  would  not  be  an  offense; 
that  is,  for  one  who  got  upon  the  public  domain  thinking 
that  he  was  upon  his  own  property.  When,  however,  he 
has  knowledge  that  it  is  Government  lands,  on  the  au- 
thority of  Taylor  vs.  United  States,  113  Federal,  which 
was  an  opinion  by  the  Circuit  Court  of  Appeals  for  the 


Against  Operations  of  Government.  385 

Eighth  Circuit,  he  would  not  be  protected  by  a  general 
custom  in  that  particular  locality,  which  was  known  to 
the  General  Land  Office,  of  entering  on  land  and  cutting 
the  timber  therefrom  before  the  patent  was  obtained:  nor 
would  the  defendant  be  protected  for  unlawfully  cutting 
timber  on  public  land  by  the  fact  that  he  acted  in  ac- 
cordance with  a  general  custom,  nor  by  the  fact  that 
prior  to  the  time  he  unlawfully  cut  timber  he  endeavored 
to  ascertain  whether  the  land  was  surveved,  and  had  also 
notified  a  Special  Agent  of  the  Government  that  he  was 
cutting  the  timber,  and  was  not  warned  off  for  three 
weeks.  None  of  these  facts,  says  the  Court,  in  that  case, 
are  evidence  of  an  honest  intent.  It  was  also  determined 
in  that  case  that  an  occupant  of  a  mineral  claim,  who 
has  applied  for  a  patent  before  the  purchase  price  is 
paid,  and  before  he  receives  a  certificate,  has  no  right 
to  cut  the  timber  on  such  claim  with  the  intent  to  export 
or  remove  the  same,  and  a  license  from  him  to  so  cut  the 
timber  gives  no  protection  to  the  licensee  as  against  the 
Government. 

Indictment. — In  Morgan  vs.  United  States,  148  Fed- 
eral, 189,  the  Circuit  Court  of  Appeals  for  the  Eighth  Cir- 
cuit, held  that  in  a  prosecution  for  cutting  timber  from 
the  public  domain,  the  defendant  was  not  prejudiced  by 
the  fact  that  the  indictment  charged  that  he  cut  the  tim- 
ber with  intent  unlawfully  to  export  and  with  intent  to 
dispose  of  the  same,  and  that  a  conviction  could  not  be 
set  aside  because  of  such  duplicity,  since  section  1025  pro- 
vided that  no  indictment  shall  be  deemed  insufficient  or 
the  proceedings  under  it  affected,  by  any  defect  in  mat- 
ter of  form,  which  does  not  tend  to  prejudice  the  defend- 
ant. 

Sec.  195  a.  Timber  Depredations  on  Public  Lands, 
Continued. 

A  mistaken  belief  may  excuse,  U.  S.  vs.  Hammond,  246 
F.  40. 

§  196.  Timber,  Etc.,  Depredations  on  Indian  and 
Other  Reservations. — Section  5388  of  the  old  statutes, 
and  the  Acts  of  March  3,  1875,  First  Supplement,  91,  and 

25 


886  Federal  Criminal  Law  Procedure. 

the  Fourth  of  June,  1888,  4  Supplement,  588,  are  included 
in  substance  in  new  Section  50,  which  reads  as  follows: 

"Sec.  50.  Whoever  shall  unlawfully  cut,  or  aid  in  unlawfully  cut- 
ting, or  shall  wantonly  injure  or  destroy,  or  procure  to  be  wantonly 
injured  or  destroyed,  any  tree,  growing  standing,  or  being  upon  any 
land  of  the  United  States  which,  in  pursuance  of  law,  has  been  re- 
served or  purchased  by  the  United  States  for  any  public  use,  or  upon 
any  Indian  Reservation,  or  lands  belonging  to  or  occupied  by  any 
tribe  of  Indians  under  the  authority  of  the  United  States,  shall  bo 
fined  not  more  than  five  hundred  dollars,  or  imprisoned  not  more 
than  one  year,  or  both." 

In  the  case  of  United  States  vs.  Pine  River  Logging 
and  Improvement  Company,  89  Federal,  907,  the  Circuit 
Court  of  Appeals  for  the  Eighth  Circuit  announced  the 
doctrine  that  the  title  to  the  timber  growing  or  standing 
on  Indian  Reservations  is  in  the  United  States,  and  in  the 
absence  of  legislative  authority,  Indians  have  no  right  to 
cut  or  dispose  of  it;  and  where  an  Indian  made  a  con- 
tract with  a  purchaser  to  cut  and  deliver  to  such  purchas- 
er a  certain  quantity  of  timber,  "more  or  less,  or  about," 
to  be  taken  from  the  dead  timber  on  a  reservation,  which 
contract  to  sell  was  permitted  by  an  Act  of  Congress 
empowering  the  President,  in  his  discretion,  to  authorize 
certain  sales,  such  contract  would  be  limited  to  the 
amount  stated,  and  the  fact  that  the  purchaser  had  paid 
for  a  large  quantity,  delivered  and  received,  in  excess 
of  that  stated  in  the  contract,  did  not  give  him  title  there- 
to, and  it  was  no  defense  to  a  suit  for  its  recovery  by 
the  Government. 

In  that  suit  it  was  also  determined  that  a  Government 
agent  could  not  legalize  a  trespass  committed  by  the  cut- 
ting of  living  trees  in  violation  of  the  statute,  by  agree- 
ing, after  they  were  cut  and  had  thus  become  dead  tim- 
ber, that  they  might  pass  under  a  contract,  and  such  an 
agreement  would  not  estop  the  Government  from  re- 
covering the  value  of  such  trees. 

§  197.  Boxing,  Etc.,  Timber  on  Public  Lands  for  Tur- 
pentine, Etc— The  Act  of  June  4,  1906,  34  Statute  at 
Large,  208,  is  practically  re-enacted  into  new  Section  51: 


Against  Operations  of  Government.  387 

"Sec.  51.  Whoever  shall  cut,  chip,  chop,  or  box  any  tree  upon  any 
lands  belonging  to  the  United  States,  or  upon  any  lands  covered  by 
or  embraced  in  any  unperfected  settlement,  application,  filing,  entry, 
selection,  or  location,  made  under  any  law  of  the  United  States,  for 
the  purpose  of  obtaining  from  such  tree  any  pitch,  turpentine,  or  other 
substance,  or  shall  knowingly  encourage,  cause,  procure,  or  aid  in  the 
cutting,  chipping,  chopping,  or  boxing  of  any  such  tree,  or  shall  buy, 
trade  for,  or  in  any  manner  acquire  any  pitch,  turpentine,  or  other 
substance,  or  any  article  or  commodity  made  from  any  such  pitch, 
turpentine,  or  other  substance,  when  he  has  knowledge  that  the  same 
has  been  so  unlawfully  obtained  from  such  trees,  shall  be  fined  not 
more  than  five  hundred  dollars,  or  imprisoned  not  more  than  one 
year,  or  both." 

This  statute  became  necessary  t//  reason  of  the  depre 
dations  which  the  Courts  held  were  not  violations  of  any 
existing  statutes.  In  United  States  vs.  Garretson,  42 
Federal,  22,  the  Court  held  that  Section  5388  of  the  old 
Statute,  making  the  wanton  destruction  of  timber  on 
lands  reserved  for  public  uses  a  crime,  did  not  cover  tur- 
pentine boxing  or  wanton  destruction  of  timber  on  lands 
open  for  pre-emption,  homestead,  and  cash  entries.  So 
also,  to  the  same  effect  was  the  case  of  Bryant  vs.  United 
States,  105  U.  S.,  941,  where  the  Circuit  Court  of  Appeals 
for  the  Fifth  Circuit  held  that  old  Section  2461,  which 
prohibited  the  cutting  or  removing  of  oak  trees  or  other 
timber  from  the  public  lands  of  the  United  States,  with 
intent  to  export,  dispose  of,  use,  or  employ,  the  trees 
or  timber  for  any  purpose  except  for  the  use  of  the  navy, 
was  not  violated  by  boxing  pine  trees  on  public  lands  for 
the  purpose  of  the  manufacture  of  turpentine,  since  the 
same  was  not  a  cutting  of  trees  within  the  meaning  of 
the  statute.  The  present  statute,  however,  inhibits  the 
cutting,  chipping,  chopping,  or  boxing  for  the  purposes 
therein  denounced.  An  indictment,  of  course,  should 
contain  the  words  "unlawful,  wilful,  and  knowing.'1 

§  198.  Setting  Fire  to  Timber  on  Public  Lands. — New 
Section  52,  which  incorporates  the  salient  features  of  the 
Act  of  the  24th  of  February,  1897;  Second  Supplement, 
562,  and  the  Act  of  May  5,  1900,  Second  Supplement, 
1163,  is  in  the  following  words: 


388  Federal  Criminal  Law  Procedure. 

"Sec.  52.  Whoever  shall  wilfully  set  on  fire,  or  cause  to  be  set  on 
fire,  any  timber,  underbrush,  or  grass  upon  the  public  domain,  or 
shall  leave  or  suffer  fire  to  burn  unattended  near  any  timber  or  other 
inflammable  material,  shall  be  fined  not  more  than  five  thousand  dol- 
lars, or  imprisoned  not  more  than  two  years,  or  both." 

§  199.  Failing  to  Extinguish  Fires. — Section  53  of  the 
new  Code  is  made  from  a  part  of  the  Acts  of  which  52 
was  constructed,  and  reads  as  follows: 

"Sec.  53.  Whoever  shall  wilfully  set  on  fire,  or  cause  to  be  set  on 
fire,  any  timber,  underbrush,  or  grass  upon  the  public  domain,  or  shall 
leave  or  suffer  fire  to  burn  unattended  near  any  timber,  or  other  in- 
flammable material,  shall  be  fined  not  more  than  five  thousand  dol- 
lars, or  imprisoned   not  more  than  two  years,  or  both." 

The  fines  arising  from  Sections  52  and  53  are  to  be  paid 
into  the  Public  School  Fund  of  the  county  in  which  the 
lands  where  the  offense  was  committed  are  situated,  and 
this  is  provided  by  Section  54  of  the  new  Code. 

§  200.  Breaking  Fence  or  Gate  Enclosing  Reserve 
Lands,  or  Driving  or  Permitting  Live  Stock  to  Enter 
Upon. — Section  56  of  the  new  Code  reads  as  follows : 

"Sec.  56.  Whoever  shall  knowingly  and  unlawfully  break,  open, 
or  destroy  any  gate,  fence,  hedge,  or  wall  inclosing  any  lands  of  the 
United  States,  which,  in  pursuance  of  any  law,  have  been  reserved  or 
purchased  by  the  United  States  for  any  public  use;  or  whoever  shall 
drive  cattle,  horses,  hogs,  or  other  live  stock  upon  any  such  lands, 
for  the  purpose  of  destroying  the  grass  or  trees  on  said  lands,  or 
where  they  may  destroy  the  said  grass  or  trees;  or  whoever  shall 
knowingly  permit  his  cattle,  horses,  hogs,  or  other  live  stock,  to  en- 
ter through  any  such  inclosure  upon  any  such  lands  of  the  United 
States,  where  such  cattle,  horses,  hogs,  or  other  live  stock  may  or  can 
destroy  the  grass  or  trees  or  other  property  of  the  United  States  on 
the  said  lands,  shall  be  fined  not  more  than  five  hundred  dollars,  or 
imprisoned  not  more  than  one  year,  or  both;  Provided,  That  nothing 
in  this  section  shall  be  construed  to  apply  to  unreserved  public 
lands." 

§  201.  Injuring  or  Removing  Posts  or  Monuments. 
Section  57  the  new  Code  is  as  follows: 

"Sec.  57.  Whoever  shall  wilfully  destroy,  deface,  change,  or  re- 
move to  another  place  any  section  corner,  quarter-section  corner,  or 
meander   post,   on  any   Government  line  of  survey,   or   shall   wilfully 


Against  Operations  of  Government.  389 

cut  down  any  witness  trees  or  any  tree  blazed  to  mark  the  line  of  a 
Government  survey,  or  shall  wilfully  deface,  change,  or  remove  any 
monument  or  bench  mark  of  any  Government,  survey,  shall  be  fined 
not  more  than  two  hundred  and  fifty  dollars,  or  imprisoned  not  more 
than  six  months,  or  both." 

§  202.  Interrupting  Service.— Section  58  of  the  new 
Code  reads  in  the  following  words,  and  takes  the  place  of 
old  Section  2412: 

"Sec.  58.  Whoever  in  any  manner,  by  threats  or  force,  shall  in 
terrupt,  hinder,  or  prevent  the  surveying  of  the  public  lands,  or  of 
any  private  land  claim  which  has  been  or  may  be  confirmed  by  the 
United  States,  by  the  persons  authorized  to  survey  the  same,  in  con- 
formity with  the  instructions  of  the  Commissioner  of  the  General 
Land  Office,  shall  be  fined  not  more  than  three  thousand  dollars  and 
imprisoned  not  more  than  three  years." 

§  203.  Agreement  to  Prevent  Bids  at  Sale  of  Lands. 
— Old  Section  2373  becomes  new  Section  59,  which  is  in 
the  following  words: 

"Sec.  59.  Whoever,  before  or  at  the  time  of  the  public  sale  of  any 
of  the  lands  of  the  United  States,  shall  bargain,  contract,  or  agree, 
or  attempt  to  bargain,  contract,  or  agree  with  any  other  person,  that 
the  last-named  person  shall  not  bid  upon  or  purchase  the  land  so 
offered  for  sale,  or  any  parcel  thereof;  or  whoever  by  intimidation, 
combination,  or  unfair  management  shall  hinder  or  prevent,  or  at- 
tempt to  hinder  or  prevent,  any  person  from  bidding  upon  or  pur 
chasing  any  tract  of  land  so  offered  for  sale,  shall  be  fined  not  more 
than  one  thousand  dollars,  or  imprisoned  not  more  than  two  years, 
or   both." 

§  204.  Injuries  to  United  States  Telegraph,  Etc., 
Lines. — The  Act  of  the  twenty-third  of  June,  1874,  18 
Statute  at  Large,  250,  First  Supplement,  46,  did  not  in- 
clude telephone  and  cable  lines  and  systems,  but  Section 
60  of  the  new  Code,  in  the  following  words,  does: 

"Sec.  60.  Whoever  shall  wilfully  or  maliciously  injure  or  destroy 
any  of  the  works,  property,  or  material  of  any  telegraph,  telephone, 
or  cable  line,  or  system,  operated  or  controlled  by  the  United  States, 
whether  constructed,  or  in  process  of  construction,  or  shall  wilfully 
or  maliciously  interfere  in  any  way  with  the  working  or  use  of  any 
such  line,  or  system,  or  shall  wilfully  or  maliciously  obstruct,  hinder, 
or  delay  the  transmission  of  an  communication  over  any  such  line. 


390  Federal  Criminal  Law  Procedure. 

or  system,  shall  be  fined  not  more  than  one  thousand  dollars,  or  im- 
prisoned not  more   than  three  years,  or  both." 

§  205.  Counterfeiting  Weather  Forecasts. — All  of  the 
salient  features  of  the  Act  of  August  8, 1894,  28  Statute  at 
Large,  274;  Second  Supplement,  233;  the  Act  of  March 
2,  1895,  28  Statute  at  Large,  737;  Second  Supplement, 
406;  and  the  Act  of  April  25,  1896,  29  Statute  at  Large, 
108,  Second  Supplement,  459,  are  re-enacted  in  the  new 
Section  61,  which  reads  as  follows: 

"Sec.  61.  Whoever  shall  knowingly  issue  or  publish  any  counter- 
feit weather  forecast  or  warning  of  weather  conditions  falsely  re- 
presenting such  forecast  or  warning  to  have  been  issued  or  published 
by  the  Weather  Bureau,  United  States  Signal  Service,  or  other  branch 
of  the  Government  service,  shall  be  fined  not  more  than  five  hundred 
dollars,  or  imprisoned  not  more  than  ninety  days,  or  both." 

§  206.  Interfering  with  Employees  of  Bureau  of  Ani- 
mal Industry.— The  Act  of  March  3,  1905,  33  Statute  at 
Large,  1265,  is  re-enacted,  with  few  unimportant  changes, 
in  Section  62  in  the  following  words: 

"Sec.  62.  Whoever  shall  forcibly  assault,  resist,  oppose,  prevent, 
impede,  or  interfere  with  any  officer  or  employee  of  the  Bureau  of 
Animal  Industry  of  the  Department  of  Agriculture  in  the  execution 
of  his  duties,  or  on  account  of  the  execution  of  his  duties,  shall  be 
fined  not  more  than  one  thousand  dollars,  or  imprisoned  not  more 
than  one  year,  or  both;  and  whoever  shall  use  any  deadly  or  dan- 
gerous weapon  in  resisting  any  officer  or  employee  of  the  Bureau  of 
Animal  Industry  of  the  Department  of  Agriculture  in  the  execution 
of  his  duties,  with  intent  to  commit  a  bodily  injury  upon  him  or  to 
deter  or  prevent  him  from  discharging  his  duties  or  on  account  of  the 
performance  of  his  duties,  shall  be  fined  not  more  than  one  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both." 

§  207.  Forgery  of  Certificate  of  Entry.— Section  63 
of  the  new  Code  re-enacts  the  substantial  provisions  of 
old  Section  5417,  in  the  following  words: 

"Sec.  63.  Whoever  shall  forge,  counterfeit,  or  falsely  alter  any 
certificate  of  entry  made  or  required  to  be  made  in  pursuance  of  law 
by  any  officer  of  the  customs,  or  shall  use  any  such  forged,  counter- 
feited, or  falsely  altered  certificate,  knowing  the  same  to  be  forged, 
counterfeited,  or  falsely  altered,  shall  be  fined  not  more  than  ten 
thousand  dollars  and  imprisoned  not  more  than  three  years." 


Against  Operations  of  Government.  39J 

§  208.  Concealment  or  Destruction  of  Invoices,  Etc. 
—Old  Section  5443  is  re-enacted  into  Section  64  in  the 
following  words: 

"Sec.  64.  Whoever  shall  wilfully  conceal  or  destroy  any  invoice, 
book,  or  paper,  relating  to  any  merchandise  liable  to  duty,  which  has 
been  or  may  be  imported  into  the  United  States  from  any  foreign 
port  or  country,  after  an  inspection  thereof  has  been  demanded  by 
the  collector  of  any  collection  district,  or  shall  at  any  time  conceal 
or  destroy  any  such  invoice,  book,  or  paper  for  the  purpose  of  sup- 
pressing any  evidence  of  fraud  therein  contained,  shall  be  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more  than  two 
years,    or   both." 

§  209.  Resisting  Revenue  Officers;  Rescuing  or  De- 
stroying Seized  Property,  Etc.— The  provisions  of  old 
Section  5447  become  in  substance  Section  65  of  the  new 
Code,  in  the  following  words: 

"Sec.  65.  Whoever  shall  forcibly  assault,  resist,  oppose,  prevent, 
impede,  or  interfere  with  any  officer  of  the  customs  or  of  the  internal 
revenue,  or  his  deputy,  or  any  person  assisting  him  in  the  execution 
of  his  duties,  or  any  person  authorized  to  make  searches  and  seizures, 
in  the  execution  of  his  duty,  or  shall  rescue,  attempt  to  rescue,  or 
cause  to  be  rescued,  any  property  which  has  been  seized  by  any  person 
so  authorized;  or  whoever  before,  at,  or  after  such  seizure,  in  order  to 
prevent  the  seizure  or  securing  of  any  goods,  wares,  or  merchandise 
by  any  person  so  authorized,  shall  stave,  break,  throw  overboard, 
destroy,  or  remove  the  same,  shall  be  fined  not  more  than  two  thous- 
and dollars,  or  imprisoned  not  more  than  one  year,  or  both;  and  who- 
ever shall  use  any  deadly  or  dangerous  weapon  in  resisting  any  per- 
son authorized  to  make  searches  or  seizures,  in  the  execution  of  his 
duty,  with  intent  to  commit  a  bodily  injury  upon  him,  or  to  deter  or 
prevent  him  from  discharging  his  duty,  shall  be  imprisoned  not  more 
than  ten  years." 

Sec.  209  a.     Resisting  Officer,  etc.,  Continued. 

The  indictment  must  show  the  legality  of  the  act  that 
the  officer  was  attempting  to  do  otherwise  is  defective,  U. 
S.  vs.  Hallowell,  271  F.  795. 

§  210.    Falsely  Assuming   to   be    Revenue   Officer.- 
There  is  little  difference  between  Section  5448  of  the  old 
Statutes  and  new  Section  66,  which  is  as  follows: 

"Sec.  66.     Whoever  shall  falsely  represent  himself  to  be  a  revenue 
officer,    and,    in    such    assumed    character,    demand    or    receive    any 


392  Federal  Criminal  Law  Procedure. 

money  or  other  article  of  value  from  any  person  for  any  duty  or  tax 
due  to  the  United  States,  or  for  any  violation  or  pretended  violation 
of  any  revenue  law  of  the  United  States,  shall  be  fined  not  more  than 
five  hundred   dollars  and   imprisoned   not   more   than   two  years." 

This  statute  is  in  addition  to  Section  32  of  the  new 
Code,  which  has  been  heretofore  noticed,  and  which  was 
old  Section  5448.  Section  32  makes  it  an  offense  for  any 
person  to  pretend  to  be  any  United  States  officer,  while 
Section  66  makes  it  an  offense  to  assume  to  be  a  revenue 
officer,  when  in  such  assumed  character  a  demand  is 
made  for,  or  any  money  or  other  article  of  value  is  re- 
ceived from  any  person  for  any  duty  or  tax  due  the  Unit- 
ed States,  or  for  any  violation  or  pretended  violation  of 
any  of  the  revenue  laws  of  the  United  States.  In  other 
words,  a  bare  assumption  or  pretention  that  one  is  a 
United  States  revenue  officer,  without  demanding  or  re- 
ceiving any  money  or  article  of  value,  as  set  out  in  the 
statute,  would  not  be  an  offense  under  this  section,  nor 
would  it  be  an  offense  under  Section  32. 

Indictment. — An  indictment  should  charge  the  unlaw- 
ful, felonious,  and  false  representation  of  the  defendant 
to  be  a  revenue  officer  of  the  United  States,  and  that  in 
such  assumed  character  he  did  demand  and  receive  cer- 
tain money  or  valuable  thing,  as  the  case  may  be,  as  a 
duty  or  tax,  or  in  settlement  of  some  violation  or  pre- 
tended violation  of  the  Government  revenue  laws. 

In  United  States  vs.  Browne,  119  Federal,  482,  District 
Judge  Thomas  held  good,  on  demurrer,  an  indictment 
which  jointly  indicted  two  defendants  under  old  Section 
5448,  the  first  count  of  which  charged  that  the  defendants 
unlawfully  and  feloniously  falsely  represented  themselves 
to  be  revenue  officers  of  the  United  States,  and  in  such 
assumed  character  did  demand  and  receive  certain  money, 
to  wit,  two  hundred  dollars,  of  and  from  one  A.  Isaacs, 
for  a  pretended  violation  by  the  said  Isaacs  of  a  revenue 
law  of  the  United  States;  that  is  to  say,  of  Section  8  of 
an  Act  of  Congress  concerning  internal  revenue  taxation, 
approved  June  13,  1898,  as  amended  in  the  respect  of 
knowingly  and  wilfully  buying  washed  revenue  stamps, 
etc.    The  second  count  was  like  the  first,  except  that  it 


Against  Opeeations  of  Government.  393 

charged  that  the  defendants  had  in  possession  washed 
and  restored  revenue  stamps,  knowingly,  and  without 
lawful  excuse.  The  third  count  charged  that  the  defend- 
ants, with  intent  to  defraud  one  Isaacs,  unlawfully  and 
feloniously,  did  falsely  assume  and  pretend  to  be  officers 
and  employees  acting  under  the  authority  of  the  United 
States,  to  wit,  revenue  officers  and  employees,  and  in 
such  pretended  character  did  fraudulently  demand  and 
obtain  from  him,  the  said  Isaacs,  a  sum  of  money,  to  wit, 
two  hundred  dollars.  This  third  count,  it  will  be  noticed, 
is  laid  under  what  is  now  new  Section  32.  The  defend- 
ants' counsel  contended  that  the  averments  of  the  indict- 
ment were  not  sufficiently  defined,  particularly  as  to  the 
designation  of  the  sort  of  revenue  officer  meant.  The 
Court  held  that  the  words  of  the  indictment  were  tech- 
nically sufficient  to  charge  an  offense  under  the  statute 

The  case  of  the  United  States  vs.  Farnham,  127  Fed- 
eral, 478,  was  discussed  in  considering  Section  32  supra, 
but  it  is  not  out  of  place  to  cite  it  here  again  to  support 
the  theory  that  there  must  not  be  a  remoteness  between 
the  pretended  character,  and  the  demand  or  receipt  of 
the  money  or  thing  of  value.  In  the  Farnham  case,  the 
defendant  pretended  to  be  a  secret-service  operative, 
wearing  a  badge,  etc.  Ten  months  afterwards  he  re- 
turned to  the  same  hotel,  representing  himself  to  be  a 
traveling  salesman,  and  secured  the  cashing  of  a  worth- 
less check.  At  the  time  of  the  cashing  of  the  worthless 
check,  he  did  not  make  any  further  representation  of  his 
Government  employment,  and  the  Court  held  that  the 
facts  were  insufficient  to  sustain  a  conviction  for  pretend- 
ing to  be  an  employee  of  the  United  States,  and  as  such 
knowingly  and  feloniously  obtaining  from  another  a  sum 
of  money,  etc. 

§  211.  Offering  Presents  to  Revenue  Officers. — Sec- 
tion 67  of  the  new  Code,  which  re-enacts  the  substantial 
provisions  of  old  Statute  5452,  is  as  follows: 

"Sec.  67.  Whoever,  being  engaged  in  the  importation  into  the 
United  States  of  any  goods,  wares,  or  merchandise,  or  being  interested 
as  principal,  clerk,  or  agent  in  the  entry  of  any  goods,  wares,  or 
merchandise,  shall  at  any  time  make,  or  offer  to  make,  to  any  officer 


394  Federal  Criminal  Law  Procedure. 

of  the  revenue,  any  gratuity  or  present  of  money  or  other  thing  of 
value,  shall  be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  two  years,  or  both." 

The  offense  herein  denounced  is  a  species  of  bribery, 
and  without  the  using  the  ugly  word  " bribery, ';  is  for 
the  purpose  of  covering  such  gratuities  and  gifts  as 
might  otherwise  be  received  by  the  public  official,  even 
thought  such  official  would  not  think  of  accepting  a  bribe. 
The  statute  is  limited  in  that  it  only  applies  to  such  gra- 
tuities or  presents  as  are  made  by  importers  to  any  officer 
in  the  Federal  revenue  service.  Smuggling  of  merchan- 
dise from  foreign  countries  into  the  United  States  would 
doubtless  be  facilitated  to  a  more  or  less  extent  by  gifts 
or  gratuities  from  such  smugglers  to  revenue  inspectors 
and  officers.  The  purpose,  therefore,  of  the  statute,  seems 
to  be  to  prevent  such  friendships  between  importers  and 
revenue  officials  as  would  facilitate  importations  of  goods 
into  this  country  without  the  payment  of  legal  duties. 

§  212.  Admitting  Merchandise  to  Entry  for  Less 
Than  Legal  Duty. — Old  Section  5444  becomes  new  Sec- 
tion 68,  which  reads  as  follows: 

"Sec.  68.  Whoever,  being  an  officer  of  the  revenue,  shall,  by  any 
means  whatever,  knowingly  admit  or  aid  in  admitting  to  entry,  any 
goods,  wares,  or  merchandise,  upon  payment  of  less  than  the  amount 
of  duty  legally  due  thereon,  shall  be  removed  from  office  and  fined 
not  more  than  five  thousand  dollars,  or  imprisoned  not  more  than 
two  years,   or   both." 

District  Judge  Chatfield,  in  the  case  of  United  States 
vs.  Mescall,  164  Federal,  584,  which  was  an  indictment 
under  old  Section  5444,  held  that  that  section  did  not 
refer  merely  to  the  act  of  filing  at  the  customs-house  the 
document  known  as  an  entry,  but  comprises  the  transac- 
tion of  entering  the  goods  into  the  body  of  the  commerce 
of  the  country;  that  is,  the  whole  process  of  passing  the 
goods  from  the  customs-house,  which  cannot  be  deemed 
completed  until  liquidation  has  been  had.  He  further 
held  that  the  words  in  the  statute,  "aid  in  the  illegal  ad- 
mission of  imports,"  includes  aid  given  both  before  and 
after  the  fact,  and  where  a  custom  officer  aids  one  who 


Against  Operations  of  Government.  395 

had  made  wrongful  entry,  by  concealing  the  falsity  of 
the  entry,  or  by  supporting  it  by  false  official  returns,  he 
is  within  the  prohibition  of  the  section. 

Indictment.— In  the  above  case,  the  Court  held  thai  an 
indictment  which  charged  that  certain  goods  had  been 
imported  into  the  United  States,  and  entered  by  the  im- 
porter with  the  collector  of  the  port  under  an  entry  num- 
ber, that  such  goods  were  subject  to  a  specific  duty,  and 
that  the  defendant,  who  was  an  officer  of  the  customs 
service,  as  a  part  of  his  official  duties,  was  to  weigh  the 
goods  included  in  this  particular  importation,  and  to 
return  to  the  collector  a  true  statement  of  the  result  of 
that  weighing  from  which  statement  the  amount  of  duty 
to  be  collected  was  to  be  liquidated  and  paid,  and  that 
in  fact  the  defendant  returned  a  false  statement  of  weight, 
upon  which  false  weight  duty  was  paid,  (the  amount  of 
this  payment  being  too  little,  in  proportion  to  the  amount 
by  which  the  false  weight  was  less  than  the  actual 
weight),  and  that  the  defendant,  by  so  doing,  unlawfully 
admitted,  or  aided  in  admitting,  to  entry,  goods  specified 
upon  payment  of  less  than  the  amount  of  duty  legally 
due  thereon,  was  not  subject  to  demurrer  for  failing  to 
describe  an  offense  under  this  statute.  See  also  United 
States  vs.  Browne,  126  Federal,  766,  and  United  States 
vs.  Legg,  105  Federal,  933.  See  United  States  vs.  Mescall, 
by  the  same  judge,  for  other  points,  164  Federal,  587. 

§  213.  Securing  Entry  of  Merchandise  by  False  Sam- 
ples, Etc. — Section  69  in  the  new  Code  is  the  same  as 
Section  5445  of  the  old  Statutes,  and  is  as  follows: 

"Sec.  69.  Whoever,  by  any  means  whatever,  shall  knowingly  effect, 
or  aid  in  effecting,  any  entry  of  goods,  wares,  or  merchandise,  at  less 
than  the  true  weight  or  measure  thereof,  or  upon  a  false  classification 
thereof  as  to  quality  or  value,  or  by  the  payment  of  less  than  the 
amount  of  duty  legally  due  thereon,  shall  be  fined  not  more  than  five 
thousand  dollars,  or  imprisoned  not  more  than  two  years,  or  both." 

The  allegations  and  proof  under  this  section  should 
show  knowledge  on  the  part  of  the  defendant  of  the  im- 
proper weight  or  measure  or  classification  of  the  goods 


396  Federal  Criminal  Law  Procedure. 

or  articles  imported;  and  while  in  United  States  vs.  Ros- 
enthal, 126  Federal,  766,  District  Judge  Thomas  held  that 
an  indictment  under  5445  which  charged  that  the  defend- 
ant, on  a  day  named,  "with  intent  ....  that  the  United 
States  should  be  wrongfully  deprived  of  a  portion  of  the 
lawful  duties  due"  on  certain  imported  goods  which 
were  specifically  dutiable  according  to  weight,  effected 
an  entry  thereof  at  less  than  their  true  weight,  and  by 
payment  of  less  than  their  legal  duty,  sufficiently  charged 
that  the  entry  was  knowingly  effected;  yet,  it  is  believed 
that  the  correct  practice  is  to  use  the  word  knowingly  in 
the  indictment  when  the  statute  makes  knowledge  a  con- 
stituent of  the  offense. 

With  the  above  qualification,  the  indictment  as  epito- 
mized by  Judge  Thomas  in  that  case,  may  be  relied  upon 
as  good  under  this  statute,  such  epitome  comprehending 
that  the  defendants,  on  the  day  named,  and  with  intent 
to  defraud  the  United  States  of  duty  on  goods  specifi- 
cally dutiable  according  to  weight,  effected  an  entry  there- 
of, which  was  an  entry  for  warehousing  the  goods,  and 
by  payment  of  less  than  the  legal  duty.  They  effected 
said  entry,  (1)  by  making  it  in  accordance  with  false 
statements  as  to  weight  in  the  invoice,  which  invoice  had 
by  their  direction  been  made,  consulated,  and  forwarded 
by  their  agent  in  Japan;  (2)  by  corruptly  procuring  said 
invoice  to  be  wrongfully  approved,  passed,  and  reported, 
by  Browne,  the  examiner,  to  the  collector.  In  other  words, 
the  offense  described  in  the  statute  is  knowingly  effecting 
an  entry  of  goods,  (a)  at  less  than  their  true  weight  or 
measure;  (b)  upon  a  false  classification;  or  (c)  by  pay- 
ment of  less  than  legal  duty. 

§  214.  False  Certification  by  Consular  Officers.— Old 
Statute  5442  has  been  changed  by  the  omission  of  the 
words  " commercial  agent  or  vice-commercial  agent," 
substituting  therefor,  "or  other  person  employed  in  the 
Consular  Service  of  the  United  States,"  in  new  Section 
70,  which  is  in  the  following  words: 

"Sec.  70.  Whoever,  being  a  consul,  or  vice-consul,  or  other  person 
employed  in  the  consular  service  of  the  United  States,  shall  know- 
ingly  certify   falsely   to   any    invoice,    or   other   paper,    to   which   his 


Against  Operations  of  Government.  397 

certificate  is  by  law  authorized  or  required,  shall  be  fined  not  more 
than  ten  thousand  dollars  and  imprisoned  not  more  than  three  years. " 

This  is  the  only  difference  between  the  new  and  the  old 
law. 

Query. — An  United  States  Consul  or  other  person  in 
the  Consular  Service  who  committed  the  offense  denounc- 
ed by  the  statute  while  he  was  in  some  foreign  country 
would  be  beyond  the  jurisdiction  of  the  Federal  Govern- 
ment, because  of  venue.  The  incorporation  of  the  word 
"knowingly"  in  the  section  also  requires  it  in  the  proof 
and  indictment. 

§  215.  Taking  Seized  Property  from  Custody  of  Reve- 
nue Officer. — There  is  practically  no  difference  between 
the  wording  of  old  Section  5446  and  new  Section  71, 
which  reads  as  follows: 

"Sec.  71.  Whoever  shall  dispossess  or  rescue,  or  attempt  to  dis- 
dispossess  or  rescue,  any  property  taken  or  detained  by  any  officer 
or  other  person  under  the  authority  of  any  revenue  law  of  the 
United  States,  or  shall  aid  or  assist  therein,  shall  be  fined  not  more 
than  three  hundred  dollars  and  imprisoned  not  more  than  one  year." 

While  this  statute  does  not  contain  the  word  "know- 
ingly," there  is  no  doubt  but  that  an  indictment  should 
allege  that  the  person  charged  knew  that  the  property 
rescued  or  taken  from  the  revenue  officer  was  in  fact  in 
possession  of  such  officer  as  a  revenue  officer  of  the  Unit- 
ed States. 

§  216.  Forging,  Etc.,  Certificate  of  Citizenship. — The 
Act  of  June  29,  1906,  34  Statute  at  Large,  602,  known  as 
the  Naturalization  Law,  contained  at  Section  16  a  pro- 
vision for  the  prosecution  of  falsely  making,  forging, 
etc.,  certificates,  when  such  certificate  was  for  the  use  of 
the  person  so  falsely  making  or  for  the  use  of  someone 
else.  In  other  words,  to  constitute  an  offense  under  the 
statute,  the  certificate  must  have  been  so  falsely  made, 
etc.,  to  be  used,  and  such  allegation  is  necessary  in  the 
bill,  and  must  be  made  in  the  proof.  The  section,  as  it 
passes  into  the  new  Code,  becomes  Section  74,  which 
reads  as  follows: 


398  Federal  Criminal  Law  Procedure. 

"Sec.  74.  Whoever  shall  falsely  make,  forge,  or  counterfeit,  or 
cause  or  procure  to  be  falsely  made,  forged,  or  counterfeited,  or  shall 
knowingly  aid  or  assist  in  falsely  making,  forging,  or  counterfeiting 
any  certificate  of  citizenship,  with  intent  to  use  the  same,  or  with 
the  intent  that  the  same  may  be  used  by  some  other  person,  shall  be 
fined  not  more  than  ten  thousand  dollars,  or  imprisoned  not  more 
than  ten  years,  or  both." 

Sec.  216  a.  Cancellation  of  Illegally  Secured  Certifi- 
cate of  Citizenship. 

The  United  States  may  bring  a  suit  to  cancel  an  il- 
legally secured  certificate  of  citizenship,  Grahl  vs.  U.  S., 
261  F.  487. 

§  217.  Engraving,  Etc.,  Plate  for  Printing  or  Photo- 
graphing, Concealing,  or  Bringing  Into  the  United  States, 
Etc.,  Certificate  of  Citizenship. — From  the  same  law,  and 
being  Section  17  thereof,  comes  Section  75  of  the  new 
Code,  which  reads  as  follows: 

"Sec.  75.  Whoever  shall  engrave,  or  cause  or  procure  to  be  en- 
graved, or  assist  in  engraving,  any  plate  in  the  likeness  of  any  plate 
designed  for  the  printing  of  a  certificate  of  citizenship;  or  whoever 
shall  sell  any  such  plate,  or  shall  bring  into  the  United  States  from 
any  foreign  place  any  such  plate,  except  under  the  direction  of  the 
Secretary  of  Commerce  and  Labor,  or  other  proper  officer;  or  who- 
ever shall  have  in  his  control,  custody,  or  possession  any  metallic 
plate  engraved  after  the  similitude  of  any  plate  from  which  any  such 
certificate  has  been  printed,  with  intent  to  use  or  to  suffer  such  plate 
to  be  used  in  forging  or  counterfeiting  any  such  certificate  or  any 
part  thereof;  or  whoever  shall  print,  photograph,  or  in  any  manner 
cause  to  be  printed,  photograph,  made,  or  executed,  any  print  or 
impression  in  the  likeness  of  any  such  certificate,  or  any  part  there- 
of; or  whoever  shall  sell  any  such  certificate,  or  shall  bring  the  same 
into  the  United  States  from  any  foreign  place,  except  by  direction 
of  some  proper  officer  of  the  United  States;  or  whoever  shall  have 
in  his  possession  a  distinctive  paper  which  has  been  adopted  by  the 
proper  officer  of  the  United  States  for  the  printing  of  such  certificate, 
with  intent  unlawfully  to  use  the  same,  shall  be  fined  not  more  than 
ten  thousand  dollars,  or  imprisoned  not  more  than  ten  years,  or 
both." 

§  218.  False  Personation,  Etc.,  In  Procuring  Natu- 
ralization.— Section  5424  of  the  old  statutes  was  construed 
in  the  cases  of  United  States  vs.  York,  131  Federal,  323, 
and  United  States  vs.  Raisch,  144  Federal,  486,  by  reason 
of  its  peculiar  wording,  as  follows: 


Against  Operations  of  Government.  399 

"It  will  be  observed  that  after  the  word  'or'  and  before  the  words 
'who  tries,'  etc.,  are  omitted  the  words  'every  person,'  with  which 
the  section  opens.  The  same  omission  occurs  in  the  third  auxiliary 
clause  of  the  section;  hence  'who,'  as  so  used,  and  whenever  used 
in  the  section,  refers  to  the  initial  'every  person.'  But  such  words 
'every  person'  are  modified  by  the  words  'applying  to  be  admitted 
a  citizen,  or  appearing  as  a  witness  for  any  such  person';  hence,  as 
the  section  literally  reads,  a  person  uttering  a  certificate  can  only 
be  punished  in  case  he  was  a  'person  applying  to  be  admitted  a 
citizen,  or  appearing  as  a  witness  for  any  such  person'."  United 
States  vs.  York,  131  Fed.,  327. 

To  the  same  effect  is  United  States  vs.  Raisch,  by  Judge 
De  Haven,  who  limits  the  application  of  the  old  section  to 
the  person  applying  to  be  admitted  a  citizen,  or  appear- 
ing as  a  witness  for  any  such  person.  To  meet  such 
construction,  and  to  remedy  what  was  evidently  a  mis- 
take, we  have  Section  76  of  the  new  Code,  in  the  follow- 
ing words: 

"Sec.  76.  Whoever,  when  applying  to  be  admitted  a  citizen,  or 
when  appearing  as  a  witness  for  any  such  person,  shall  knowingly 
personate  any  person  other  than  himself,  or  shall  falsely  appear  in 
the  name  of  a  deceased  person,  or  in  an  assumed  or  fictitious  name: 
or  whoever  shall  falsely  make  forge,  or  counterfeit  any  oath,  notice, 
affidavit,  certificate,  record,  signature,  or  other  instrument,  paper,  or 
proceeding  required  or  authorized  by  any  law  relating  to  or  providing 
for  the  naturalization  of  aliens;  or  whoever  shall  utter,  sell,  dispose  of, 
or  shall  use  as  true  or  genuine,  for  any  unlawful  purpose,  any  false, 
forged,  antedated,  or  counterfeit  oath,  notice,  certificate,  order,  record, 
signature,  instrument,  paper,  or  proceeding  above  specified;  or  who- 
ever shall  sell  or  dispose  of  to  any  person  other  th*n  the  person  for 
whom  it  was  originally  issued  any  certificate  of  citizenship,  or  certifi- 
cate showing  any  person  to  be  admitted  a  citizen,  shall  be  fined  not 
more  than  one  thousand  dollars,  or  imprisoned  not  more  than  five 
years,  or   both.'' 

This  section  clearly  applies  generally  to  every  person, 
whether  he  be  applying  to  be  admitted  a  citizen,  or 
whether  he  be  appearing  as  a  witness  for  any  such  per- 
son. The  use  of  the  word  "whoever"  before  each  of  the 
clauses  in  the  section  which  denounce  various  phases  of 
the  offense,  meet  clearly  the  limitations  found  in  the  old 
statute,  and  render  the  new  section  general  in  its  appli- 
cation. 


400  Federal  Criminal  Law  Procedure. 

§  219.  Using  False  Certificate  of  Citizenship,  or  De- 
nying- Citizenship,  Etc. — Section  5425  of  the  old  statute 
was  enlarged  by  the  Act  of  June  29,  1906,  34  Statute  at 
Large,  602,  which  now  passes  into  the  new  Code  as  Sec- 
tion 77,  in  the  following  words: 

"Sec.  77.  Whoever  shall  use  or  attempt  to  use,  or  shall  aid,  assist, 
or  participate  in  the  use  of  any  certificate  of  citizenship,  knowing 
the  same  to  be  forged,  counterfeit,  or  antedated,  or  knowing  the  same 
to  have  been  procured  by  fraud  or  otherwise  unlawfully  obtained: 
or  whoever,  without  lawful  excuse,  shall  knowingly  possess  any  false, 
forged,  antedated,  or  counterfeit  certificate  of  citizenship  purporting  to 
have  been  issued  under  any  law  of  the  United  States  relating  to  natur- 
alization, knowing  such  certificate  to  be  false,  forged,  antedated,  or  coun- 
terfeit, with  the  intent  unlawfully  to  use  the  same;  or  whoever  shall 
obtain,  accept,  or  receive  any  certificate  of  citizenship,  knowing  the 
same  to  have  been  procured  by  fraud  or  by  the  use  or  means  of  any 
false  name  or  statement  given  or  made  with  the  intent  to  procure,  or 
to  aid  in  procuring,  the  issuance  of  such  certificate,  or  knowing  the 
same  to  have  been  fraudulently  altered  or  antedated;  or  whoever, 
without  lawful  excuse,  shall  have  in  his  possession  any  blank  certifi- 
cate of  citizenship  provided  by  the  Bureau  of  Immigration  and 
Naturalization  with  the  intent  unlawfully  to  use  the  same;  or  who- 
ever, after  having  been  admitted  to  be  a  citizen,  shall,  on  oath  or  by 
affidavit,  knowingly,  deny  that  he  has  been  so  admitted,  with  the 
intent  to  evade  or  avoid  any  duty  or  liability  imposed  or  required  by 
law,  shall  be  fined  not  more  than  one  thousand  dollars,  or  imprisoned 
not  more  than  five  years,   or  both." 

The  rule  announced  in  United  States  vs.  Melfi,  118  Fed- 
eral, 902,  which  was  a  prosecution  for  conspiracy  to 
commit  an  offense  against  the  United  States  by  causing  a 
violation  of  Section  5425,  is  applicable  to  the  drafting 
of  indictments  under  the  new  section,  and  it  will,  there- 
fore, be  observed  that  one  of  the  essential  ingredients 
of  the  offense  is  that  the  person  who  should  obtain,  ac- 
cept, or  receive  a  certificate  of  citizenship,  who  should  do 
so  with  knowledge  on  his  part  that  it  had  been  procured 
by  means  of  false  statements  made  with  intent  to  pro- 
cure or  aid  in  procuring  the  issue  of  such  certificate. 

Bunning  throughout  these  naturalization  laws,  is  the 
use  of  the  word  "knowingly,"  and  the  pleader  must  not 
assume  that  such  word  was  used  by  Congress  uninten- 
tionally. It  is  absolutely  necessary  to  show  knowledge, 
both  in  allegation  and  in  proof. 


Against  Operations  op  Government.  401 

Sec.  219  a.  Using  False  Certificates  of  Citizenship 
Continued. 

Sec.  79  of  the  Code  denounces  a  false  representation 
as  to  being  a  United  States  citizen;  also  see  Christopoulo 
vs.  U.  S.,  230  F.  789. 

§  220.  Using  False  Certificate,  Etc.,  as  Evidence  of 
Right  to  Vote.— Section  78.  of  the  new  Code  displaces  old 
Section  5426,  and  is  in  the  following  words: 

"Sec.  7S.  Whoever  shall  in  any  manner  use,  for  the  purpose  of 
registering  as  a  voter,  or  as  evidence  of  a  right  to  vote,  or  otherwise 
unlawfully,  any  order,  certificate  of  citizenship,  or  certificate,  judg- 
ment, or  exemplification,  showing  any  person  to  be  admitted  to  be  a 
citizen,  whether  heretofore  or  hereafter  issued  or  made,  knowing 
that  such  order,  certificate,  judgment,  or  exemplification  has  been  un- 
lawfully issued  or  made;  or  whoever  shall  unlawfully  use,  or  at- 
tempt to  use,  any  such  order  or  certificate,  issued  to  or  in  the  name 
of  any  other  person,  or  in  a  fictitious  name,  or  the  name  of  a  de- 
ceased person,  shall  be  fined  not  more  than  one  thousand  dollars,  or 
imprisoned   not  more  than  five  years,   or  both." 

Bearing  in  mind  the  observation  that  has  been  so  often 
repeated  as  to  the  use  of  the  word  "knowledge"  or 
"knowingly"  in  these  naturalization  statutes,  it  is  well 
to  call  attention  to  the  case  of  United  States  vs.  Lehman, 
39  Federal,  768,  where  Judge  Thayer  held  that  an  indict- 
ment for  a  violation  of  such  statute,  which  describes  the 
fraud  without  describing  the  facts  constituting  the  fraud, 
is  bad,  though  the  allegation  be  made  that  such  acts  are 
unknown  to  the  grand  jury.  In  the  matter  of  Coleman, 
15  Blatchf.,  406,  it  was  held  that  knowledge  that  the  cer- 
tificate was  unlawfully  issued  or  made  was  necessary  to 
constitute  an  offense  under  the  section.  There  can  be  no 
conviction  when  it  appears  that  the  defendant  complied 
fully  with  all  the  conditions  imposed  on  him  as  prereq- 
uisite to  his  admission  and  that  the  unlawfulness,  if 
any,  was  in  the  want  of  form  in  the  record  of  the  Court. 
So,  in  United  States  vs.  Burley,  14  Blatchf.,  U.  S.,  91, 
where  the  defendant  was  indicted  under  this  section  and 
the  proof  showed  that  the  defendant  had  registered  as  a 
voter  upon  the  protection  of  the  certificate,  which  certifi- 
cate, had  been  issued  when  the  applicant  was  not  in  Court, 
and  without  any  oath  taken  by  him,  the  certificate  being 

26 


402  Federal  Criminal  Law  Procedure. 

regular  upon  its  face,  the  mere  fact  that  the  defendant 
knew  that  the  certificate  had  been  issued  without  his 
presence  in  Court,  and  without  any  oath  being  taken  by 
him,  was  not  sufficient  to  warrant  a  conviction. 

§  221.  Falsely  Claiming  Citizenship. — Section  5428  of 
the  old  statutes,  becomes  Section  79  of  the  new  Code  in 
the  following  words: 

"Sec.  79.  Whoever  shall  knowingly  use  any  certificate  of  naturaliza- 
tion heretofore  or  which  hereafter  may  be  granted  by  any  court, 
which  has  been  or  may  be  procured  through  fraud  or  by  false  evi- 
dence, or  which  has  been  or  may  hereafter  be  issued  by  the  clerk  or 
any  other  officer  of  the  court  without  any  appearance  and  hearing  of 
the  applicant  in  court  and  without  lawful  authority;  or  whoever,  for 
any  fraudulent  purpose  whatever,  shall  falsely  represent  himself  to 
be  a  citizen  of  the  United  States  without  having  been  duly  admitted 
to  citizenship,  shall  be  fined  not  more  than  one  thousand  dollars,  or 
imprisoned  not  more  than  two  years,  or  both." 

The  word  "duly"  in  the  section  on  the  authority  of 
Judge  Chatfield  in  United  States  vs.  Hamilton,  157  Fed- 
eral, 569,  applies  to  a  regular  compliance  with  require- 
ments, rather  than  to  the  truth  of  the  facts  involved  in 
the  admission,  and  where  the  person  charged  was  granted 
a  certificate  of  citizenship  by  an  order  of  Court,  both  of 
which  are  regular  in  form,  and  have  not  been  vacated, 
it  is  impossible  to  charge  unlawful  use,  based  solely  upon 
a  further  allegation  of  knowledge  that  the  certificate  had 
not  been  duly  made. 

In  Green  vs.  United  States,  150  Federal,  560,  the  Cir- 
cuit Court  of  Appeals  for  the  Ninth  Circuit  held  that  an 
alien  who  knowingly  makes  a  false  affidavit  that  he  has 
been  duly  naturalized  as  a  citizen  of  the  United  States, 
before  a  Registration  Officer  for  the  purpose  of  procuring 
himself  to  be  registered  as  a  voter  at  an  approaching 
election  in  a  State,  commits  an  offense  under  this  section. 
That  Court  also  held  that  it  is  not  necessary  that  the 
false  certificate  be  actually  used  for  an  unlawful  purpose 
to  constitute  the  offense  denounced  by  the  statute. 

Sec.  221  a.     Falsely  Claiming  Citizenship  Continued. 

See  Christopoulo  vs.  U.  S.,  230  F.  789. 


Against  Operations  of  Government.  403 

§  222.  Taking  False  Oath  in  Naturalization.— Section 
80  of  the  new  Code  re-enacts  old  Section  5395  in  the  fol- 
lowing words : 

"Sec.  80.  Whoever,  in  any  proceeding  under  or  by  virtue  of  any 
law  relating  to  the  naturalization  of  aliens,  shall  knowingly  swear 
falsely  in  any  case  where  an  oath  is  made  or  affidavit  taken,  shall  be 
fined  not  more  than  one  thousand  dollars  and  imprisoned  not  more 
than  five  years." 

In  United  States  vs.  Moore,  144  Federal,  962,  the  Cir- 
cuit Court  of  Appeals  passes  upon  a  form  of  an  indict- 
ment under  this  section,  and  says  that  in  prosecutions  for 
perjury  and  in  prosecutions  akin  thereto,  it  is  a  funda- 
mental rule  that  an  indictment  must  show  that  the  tri- 
bunal before  which  the  offense  is  alleged  to  have  occurred 
had  jurisdiction  over  the  issue  to  which  it  related.  It 
is  also  a  fundamental  rule  that  it  is  not  sufficient  to  allege 
in  general  terms  that  the  tribunal  named  had  jurisdiction 
over  the  issue  alleged  to  have  been  involved,  because 
such  an  allegation  includes  matters  of  law,  as  well  as 
fact;  while  it  is  the  duty  and  right  of  the  court  before 
which  an  indictment  is  pending  to  be  so  far  advised  of 
the  facts  that  it  can  determine  for  itself  whether  the  issue 
was  of  such  a  character  as  to  give  the  tribunal  named 
jurisdiction  thereof,  and  such  as  to  render  the  alleged 
offense  material  thereto. 

In  the  case  of  Schmidt  vs.  United  States,  133  Federal, 
257,  the  Circuit  Court  of  Appeals  for  the  Ninth  Circuit 
held  that  on  the  trial  of  a  defendant  for  perjury  commit- 
ted in  a  naturalization  though  such  affidavits,  when  sign- 
ed, were  in  blank.  So,  too,  in  that  case  the  Court  held 
that  a  defective  final  order  was  admissible  as  evidence 
of  the  facts  therein  stated.  The  Supreme  Court,  in  Hol- 
gren  vs.  United  States,  October  Term,  1909,  affirms  same 
case,  156  Federal,  439,  the  principal  question  being  whe- 
ther, under  this  section,  a  conviction  can  be  had  in  a 
Federal  Court  for  a  false  oath  thereunder  in  a  State 
Court.    Held,  that  it  could. 

§  222a.  Oath  Must  be  Material. — No  prosecution  for 
false  swearing  under  Section  80  can  be  successfully  main- 


404  Federal  Criminal  Law  Procedure. 

tained  unless  the  oath  was  a  material  oath.     U.  S.  vs. 
Bressi,  208  Federal,  369. 

§  223.  Provisions  Applicable  to  All  Courts  of  Nat- 
uralization.— Section  5429  of  the  old  statutes  is  re-en- 
acted into  Section  81  of  the  new  Code,  and  some  new 
words  are  added  for  the  purpose  of  showing  that  the  pen- 
al provisions  above  treated  are  applicable  to  proceedings 
had  or  taken  in  any  Court,  and  reads  as  follows: 

"Sec.  81.  The  provisions  of  the  five  sections  last  preceding  shall 
apply  to  all  proceedings  had  or  taken,  or  attempted  to  be  had  or  taken, 
before  any  court  in  which  any  proceedings  for  naturalization  may  be 
commenced  or  attempted  to  be  commenced,  and  whether  such  court 
was  vested  by  law  with  jurisdiction  in  naturalization  proceedings  or 
not." 

See  Holgren  vs.  United  States,  156  Federal,  439,  af- 
firmed by  Supreme  Court,  October  Term,  1909. 

§  223a.  To  Cancel  Certificate. — A  suit  to  cancel  cer- 
tificate of  naturalization  must  show  either  fraud  or  that 
the  evidence  before  the  Court  which  granted  the  certifi- 
cate was  insufficient  to  warrant  the  finding  of  residence. 
U.  S.  vs.  Eoekteschell,  208  Federal,  530.  The  word  "  re- 
side" as  used  in  the  naturalization  suit  is  capable  of  dif- 
ferent meanings.  Generally  however,  it  signifies  nothing 
more  nor  less  than  domicile.  U.  S.  vs.  Eoekteschell,  208 
Federal,  530. 

Sec.  223  b.    A  Certificate  May  be  Cancelled. 

For  acts  subsequent  to  the  issuance,  U.  S.  vs.  Kramer, 
262  F.  395. 

§  224.  Corporations,  Etc.,  Not  to  Constribute  Money 
for  Political  Elections,  Etc. — The  Act  of  January  26, 
1907,  34  Statute  at  Large,  becomes  Section  83  of  the  new 
Code,  in  the  following  words: 

"Sec.  83.  It  shall  be  unlawful  for  any  national  bank,  or  any  cor- 
poration organized  by  authority  of  any  law  of  Congress,  to  make  a 
money  contribution  in  connection  with  any  election  to  any  political 
office.  It  shall  also  be  unlawful  for  any  corporation  whatever  to  make 
a  money  contribution  in  connection  with  any  election  at  which  Presi- 
dential and  Vice-Presidential  electors  or  a  Representative  in  Congress_ 
is  to  be  voted  for,  or  any  election  by  any  state  legislature  of  a 
United  States  Senator.  Every  corporation  which  shall  make  any 
contribution    in   violation   of   the   foregoing  provisions   shall   be   fined 


Against  Operations  of  Government.  405 

not  more  than  five  thousand  dollars;  and  every  officer  or  director  of 
any  corporation  who  shall  consent  to  any  contribution  by  the  cor- 
poration in  violation  of  the  foregoing  provisions  shall  be  fined  not 
more  than  one  thousand  dollars,  or  imprisoned  not  more  than  one 
year,  or  both." 


CHAPTER  IX. 

OFFENSES   AGAINST   THE   EXISTENCE   OF   THE   GOVERNMENT. 

§  225.  Treason,  Generally. 

226.  The   Statute:     5331—1. 

227.  Punishment:     5332—2. 

228.  Misprision    of    Treason:     5333 — 3. 

229.  Inciting  or   Engaging  in   Rebellion   or   Insurrection:     5334 — 4. 

230.  Criminal  Correspondence  with  Foreign  Governments:   5335 — 5. 

231.  Seditious   Conspiracy:     5336 — 6. 

232.  Recruiting   Soldiers   or    Sailors   to    Serve   Against   the   United 

States.    5337—7. 

233.  Enlistment   to   Serve   Against  the   United    States:     5338 — 8. 
233a.  Ordinance — Purchase,    sale    or    Disposal    of. 

§  225.  Treason. — At  the  time  of  the  formation  of  this 
Republic,  treasons  were  numerous  in  England.  They 
were  divided  into  high  and  petit.  By  the  old  Common 
Law,  there  were  several  forms  of  petit  treason,  which 
later,  by  English  statute,  were  reduced  to  three.  These 
were:  the  killing  by  a  servant  of  his  master;  the  killing 
of  a  husband  by  the  wife;  and  the  killing  of  a  prelate  by 
an  ecclesiastic  owing  him  obedience.  All  these  petit  trea- 
sons were  abolished,  however,  in  1828,  and  there  remains 
now  but  one  sort,  and  that  is  high  treason.  So,  when  the 
word  "treason"  is  used,  it  means  high  treason.  Under 
the  United  States  laws,  there  are  no  Common  Law  crimes, 
and  treason,  as  defined  in  the  Constitution  of  the  United 
States,  consists  only  in  levying  war  against  them,  or  in 
adhering  to  their  enemies,  giving  them  aid  and  comfort. 
The  meaning  of  the  words  "levying  war,"  and  the  other 
words,  "adhering  to  their  enemies,  giving  them  aid  and 
comfort,"  is  to  be  found  in  the  Common  Law  doctrine  of 
and  aider  at  the  fact,  as  applicable  to  the  levying  of  war 
in  treason.  The  meaning  of  war,  as  defined  by  Bishop, 
is  an  attempt,  by  force,  either  to  subjugate  or  to  over- 
throw the  Government  against  which  it  is  levied.  Ordi- 
narily, where  the  overthrow  is  not  contemplated,  a  treaty 
acknowledging  rights  previously  denied  is  expected.  Tf 
a  body  of  men,  mistakenly  deeming  a  particular  statute 
to  violate  fundamental  or  constitutional  right,  combine 

(406) 


Offenses  Against  Existence  of  Government.    4n, 

to  oppose  by  force  its  execution,  and  commit  therein  an 
overt  act,  they  are  undoubtedly  guilty  of  treason,  pro- 
vided, it  is  their  determination  also  to  resist  by  violence 
every  attempt  to  bring  them  to  justice  and  to  continue 
this  course  until  the  Government  is  compelled  to  yield  to 
them.  Bishop's  New  Criminal  Law,  Second  Volume,  page 
703.  The  same  writer,  in  answering  the  question,  What 
is  levying  war?  says  that  in  legal  reason  a  levying  of 
war  consists  of  two  elements,  neither  of  which  can  be  dis- 
pensed with:  the  one  is  the  intent  existing  as  of  fact  in 
the  mind  of  the  accused  person,  either  to  overthrow  the 
Government,  or  to  compel  it,  through  fear,  to  yield  some- 
thing to  which  it  would  not  voluntarily  assent;  the  other 
is  some  overt  act  in  the  nature  of  war  or  preparation 
therefor,  or  threatening  it,  as  an  array  of  persons  as- 
sembled for  war,  or  some  war-like  violence,  or  some  other 
step  menacing  war.  Yet,  we  must  admit  that  it  is  legally 
possible  for  one  man  alone  to  levy  war  upon  his  Govern- 
ment, and  be  guilty  of  treason.  Second  Bishop's  Criminal 
Law,  704. 

§  226.  The  Statute. — In  line  with  the  Constitutional 
definition  of  treason  was  old  Statute  5331,  which  is  re-en- 
acted into  Section  1  of  the  New  Code,  which  reads  as 
follows: 

"Sec.  1.  Whoever,  owing  allegiance  to  the  United  States  levies  war 
against  them  or  adheres  to  their  enemies,  giving  them  aid  and  com- 
fort within  the  United  States  or  elsewhere,  is  guilty  of  treason." 

In  1  Story,  U.  S.,  614,  30  Federal  Case,  18275,  the  follow- 
ing charge  was  given  to  a  grand  jury: 

"It  is  not  every  act  of  treason  by  levying  war  that  is  treason  against 
the  United  States.  It  may  be,  and  often  is,  aimed  altogether  against 
the  sovereignty  of  a  particular  state.  Thus,  for  example,  if  the  ob- 
ject of  an  assembly  of  persons  met  with  force  is  to  overthrow  the 
Government  or  Constitution  of  a  State,  or  to  prevent  the  due  exer- 
cises of  its  sovereign  powers,  or  to  resist  the  exercises  of  any  one  or 
more  of  its  general  laws,  but  without  any  intention  whatsoever  to 
intermeddle  with  the  relations  of  that  State  with  the  national  Govern- 
ment, or  to  displace  the  national  laws  or  sovereignty  therein:— every 
overt  act  done  with  force  toward  the  execution  of  such  a  treason- 
able purpose  is  treason  against  the  State,  and  against  the  State  only. 
But  treason  may  be  begun  against  a  State  and  may  be  mixed  up  or 


408  Federal  Criminal  Law  Procedure. 

merged  in  treason  against  the  United  States.  Thus,  if  the  treason- 
able purpose  be  to  overthrow  the  Government  of  the  State  and  forcibly 
to  withdraw  it  from  the  Union,  and  thereby  to  prevent  the  exercise 
of  the  national  sovereignty  within  the  limits  of  the  State,  that 
would  be  treason  against  the  United  States." 

In  United  States  vs.  Wiltberger,  5  Wheat.,  U.  S.,  76, 
treason  was  denned  as  a  breach  of  allegiance,  and  can  be 
committed  by  him  only  who  owes  allegiance,  either  per- 
petual or  temporary.  In  the  case  of  United  States  vs. 
Greiner,  26  Federal  Case  No.  15262,  it  was  held  that  every 
step  taken  by  anyone  of  an  armed  body  of  men  mustered 
into  military  array  for  a  treasonable  purpose,  by  march- 
ing or  otherwise,  in  part  execution  of  that  purpose,  is  an 
overt  act  of  treason  in  levying  war.  See  also  U.  S.  vs. 
Vilato,  2  Dall.,  370;  the  Insurgents,  2  Dall.,  385;  ex  parte 
Bohnan  et  al,  4  Cranch,  75;  U.  S.  vs.  Burr,  4  Cranch,  469; 
Carlyle  vs.  U.  S.,  16  Wallace,  147;  U.  S.  vs.  Burr,  1  Burr's 
Trial,  14,  16;  Second  Burr's  Trial,  402,  page  25,  Federal 
Case,  2,  52,  55,  and  210;  U.  S.  vs.  Cathcart,  1  Bond,  556; 
25  Federal  Case,  344;  U.  S.  vs.  Greathouse,  26  Federal 
Case,  818;  U.  S.  vs.  Hodges,  26  Federal  Cases,  332;  U.  S. 
vs.  Hoxie,  26  Federal  Case,  397;  U.  S.  vs.  Mitchell,  2  Dall., 
26,  Federal  Case,  1277;  U.  S.  vs.  Vigol,  28  Federal  Case, 
376;  U.  S.  vs.  Pry  or,  27  Federal  Case,  628;  Charges  to 
Grand  Jury,  2  Curt.,  630,  30  Federal  Case,  1024,  4  Blatchf., 
518;  30  Federal  Case,  1032;  5  Blatchf.,  549;  30  Federal 
Case,  1034;  1  Bond,  609,  30  Federal  Case,  1036;  30  Federal 
Case,  1039;  30  Federal  Case,  1042;  30  Federal  Case,  1046; 
30  Federal  Case,  1047;  30  Federal  Case,  1049.  One  of  the 
most  interesting  cases,  in  its  treatment  of  the  evidence 
necessary  to  establish  the  offense,  will  be  found  in  United 
States  vs.  Burr,  25  Federal  Case,  No.  14693. 

Sec.  226  a.    Treason  Continued. 

The  harboring  or  concealing  of  a  spy  of  the  govern- 
ment against  which  the  United  States  were  at  war  is 
treason,  U.  S.  vs.  Fricke,  259  F.  673. 

Treason  embraces  the  existence  both  of  a  state  of  mind 
and  of  an  overt  act,  U.  S.  vs.  Werner,  247  F.  709. 

§  227.  Punishment. — The  punishment  for  treason  is 
the  same  under  Section  2  of  the  new  Code  as  it  was  under 
the  old  Statute  5332,  the  new  section  reading  as  follows: 


Offenses  Against  Existence  of  Government.    409 

"Sec.  2.  Whoever  is  convicted  of  treason  shall  suffer  death;  or, 
at  discretion  of  the  court,  shall  be  imprisoned  not  less  than  five  years 
and  fined  not  less  than  ten  thousand  dollars,  to  be  levied  on  and 
collected  out  of  any  or  all  of  his  property,  real  or  personal,  of  which 
he  was  the  owner  at  the  time  of  committing  such  treason,  any  sale 
or  conveyance  to  the  contrary  notwithstanding;  and  every  person 
so  convicted  of  treason  shall,  moreover,  be  incapable  of  holding  any 
office  under  the  United  States." 

In  Davis  case,  Chase,  U.  S.,  page  1,  7  Federal  Case  No. 
3621a,  it  was  held  that  treason  under  this  section  in  bail- 
able. 

It  was  held  in  Wallace  vs.  Van  Riswick,  92  U.  S.,  202,  23 
Law  Ed.,  473,  that  after  an  adjudicated  forfeiture  and 
sale  of  an  enemy's  land,  under  the  Confiscation  Act  of 
Congress  of  July  7,  1862,  and  the  general  resolution  of 
even  date  therewith,  that  there  was  not  left  in  him  any  in- 
terest which  he  could  convey  by  deed. 

In  Windsor  vs.  McVeigh,  93  U.  S.,  274,  23  Law  Ed., 
page  914,  the  Supreme  Court  held  that  the  jurisdiction  ac- 
quired by  the  seizure  of  the  property  in  a  proceeding  in 
rem  for  its  condemnation,  is  not  to  pass  upon  the  question 
of  forfeiture  absolutely,  but  to  pass  upon  that  question 
after  opportunity  has  been  offered 'to  its  owner  and  parties 
interested  to  appear  and  be  heard  upon  the  charges  for 
which  the  forfeiture  is  claimed.  To  that  end,  some  noti- 
fication of  the  proceedings,  beyond  that  arising  from  the 
seizure  prescribing  the  time  within  which  the  appearance 
must  be  made,  is  essential. 

§  228.  Misprision  of  Treason. — Section  3  of  the  new 
Code,  which  takes  the  place  of  the  old  Statute  5333,  is  in 
the  following  words: 

"Sec.  3.  Whoever,  owing  allegiance  to  the  United  States  and  having 
knowledge  of  the  commission  of  any  treason  against  them,  conceals, 
and  does  not,  as  soon  as  may  be,  disclose  and  make  'known  the  same 
to  the  President  or  to  some  judge  of  the  United  States,  or  to  the 
govenor  or  to  some  judge  or  justice  of  a  particular  State,  is  guilty 
of  misprision  of  treason  and  shall  be  imprisoned  not  more  than 
seven  years  and  fined  not  more  than  one  thousand  dollars." 

Cases  of  more  or  less  interest,  bearing  upon  the  statute, 
are  United  States  vs.  Wiltberger,  5  Wheat,,  97;  Confisca- 
tion cases,  1  Woods,  221,  6  Federal  Case,  270;  U.  S.  vs. 
Tract  of  Land,  1  Woods,  475;  28  Federal  Case,  203. 


410  Federal  Criminal  Law  Procedure. 

Misprision,  whether  of  felony  or  of  treason,  is  defined 
by  the  text-book  writers  as  criminal  negligence  either  to 
prevent  it  from  being  committed,  or  to  bring  to  justice 
the  offender  after  its  commission.  The  statute  under 
consideration  seems  to  be  limited  by  its  terms,  not  to  a 
prevention  of  the  offense  of  treason,  but  to  the  disclosure 
of  the  knowledge  of  the  commission  as  soon  as  may  be. 

Sec.  228a.     Misprision  of  Treason — Continued. 

The  mere  expression  of  an  opinion  is  not  a  violation  of 
this  statute.  Sandberg  vs.  U.  S.,  257  F.  643. 

§  229.  Inciting  or  Engaging  in  Rebellion  or  Insurrec- 
tion.— Section  5334  of  the  old  Statutes  becomes  Section 

4  of  the  new  Code,  in  the  following  words: 

"Sec.  4.  Whoever  incites,  sets  on  foot,  assists,  or  engages  in  any 
rebellion  or  insurrection  against  the  authority  of  the  United  States 
or  the  laws  thereof,  or  gives  aid  or  comfort  thereto,  shall  be  imprison- 
ed not  more  than  ten  years,  or  fined  not  more  than  ten  thousand 
dollars,  or  both;  and  shall,  moreover,  be  incapable  of  holding  any 
office  under  the  United   States." 

§  230.  Criminal  Correspondence  with  Foreign  Govern- 
ments.— Section  5335  of  the  old  statutes  becomes  section 

5  of  the  new  Code,  which  reads  as  follows: 

"Sec.  5.  Every  citizen  of  the  United  States,  whether  actually  resi- 
dent or  abiding  within  the  same,  or  in  any  place  subject  to  the  juris- 
diction thereof,  or  in  any  foreign  country,  without  the  permission 
or  authority  of  the  Government,  directly  or  indirectly,  commences 
or  carries  on  any  verbal  or  written  correspondence  or  intercourse 
with  any  foreign  government  or  any  officer  or  agent  thereof,  with  an 
intent  to  influence  the  measures  or  conduct  of  any  foreign  government 
or  of  any  officer  or  agent  thereof,  in  relation  to  any  disputes  or  con- 
troversies with  the  United  States,  or  to  defeat  the  measures  of  the 
Government  of  the  United  States;  and  every  person,  being  a  citizen 
of  or  resident  within  the  United  States  or  in  any  place  subject  to  the 
jurisdiction  thereof,  and  not  duly  authorized,  counsels,  advises,  or 
assists  in  any  such  correspondence  with  such  intent,  shall  be  fined 
not  more  than  five  thousand  dollars,  and  imprisoned  not  more  than 
three  years;  but  nothing  in  this  section  shall  be  construed  to  abridge 
the  right  of  a  citizen  to  apply  himself  or  his  agent,  to  any  foreign 
government  or  the  agents  thereof  for  redress,  of  any  injury  which  he 
may  have  sustained  from  such  government  or  any  of  its  agents  or 
subjects." 


Offenses  Against  Existence  of  Government.    411 

§  231.  Seditious  Conspiracy.— Section  5336  of  the  old 
statutes  becomes  Section  6  of  the  new  Code,  and  is  as  fol- 
lows: 

"Sec.  6.  If  two  or  more  persons  in  any  State  or  Territory  or  in  any 
place  subject  to  the  jurisdiction  of  the  United  States,  conspire  to 
overthrow,  put  down,  or  to  destroy  by  force  the  Government  of  the 
United  States,  or  to  levy  war  against  them,  or  to  oppose  by  force 
the  authority  thereof,  or  by  force  to  prevent,  hinder,  or  delay  the  exe- 
cution of  any  law  of  the  United  States,  or  by  force  to  seize,  take,  or 
possess  any  property  of  the  United  States  contrary  to  the  authority 
thereof,  they  shall  each  be  fined  not  more  than  five  thousand  dollars, 
or  imprisoned  not  more  than  six  years,  or  both." 

Sec.  231  a.    Seditious  Conspiracy  Continued. 

It  is  a  violation  to  conspire  against  the  neutrality  of 
the  government,  Act  of  May  7,  1917,  Criminal  Code,  Sec. 
10,  as  against  enlisting  for  foreign  service. 

For  conspiracy  against  the  Espionage  Act  and  to  vio- 
late the  draft  and  against  our  declarations  of  war  see: 
Masses  vs.  Patten,  244  P.  535;  U.  S.  vs.  Casey,  247  P.  362; 
Orear  vs.  U.  S.,  261  F.  259;  Wells  vs.  U.  S.,  257  F.  605; 
Reeder  vs.  U.  S.,  262  F.  36. 

§  232.  Recruiting  Soldiers  or  Sailors  to  Serve  Against 
the  United  States.— Section  5337  of  the  1878  statutes  be- 
comes Section  7  of  the  new  Code,  and  is  as  follows: 

"Sec.  7.  Whoever  recruits  soldiers  or  sailors  within  the  United 
States,  or  in  any  place  subject  to  the  jurisdiction  thereof,  to  engage 
in  armed  hostility  against  the  same,  or  opens  within  the  United 
States,  or  in  any  place  subject  to  the  jurisdiction  thereof,  a  recruiting 
station  for  the  enlistment  of  such  soldiers  or  sailors  to  serve  in  any 
manner  in  armed  hostility  against  the  United  States,  shall  be  fined  not 
more  than  one  thousand  dollars  and  imprisoned  not  more  than  five 
years." 

§  233.    Enlistment  to  Serve  Against  the  United  States. 

— Section  8  of  the  new  Code  displaces  Section  5338  of  the 
old  statutes,  and  is  as  follows: 

"Sec.  8.  Every  person  enlisted  or  engaged  within  the  United  States 
or  in  any  place  subject  to  the  jurisdiction  thereof,  with  intent  to 
serve  in  armed  hostility  against  the  United  States,  shall  be  fined 
one  hundred  dollars  and  imprisoned  not  more  than  three  years." 


412  Federal  Criminal  Law  Procedure. 

§  233a.  Ordinance,  Purchase,  Sale,  or  Disposal  of. — 
Sections  1242  and  3748  of  the  Revised  Statutes  prohibit 
the  purchase,  sale,  pledge,  loan  or  gift  by  a  soldier  of 
any  of  his  clothing,  arms,  military  outfit  and  accouter- 
ments,  and  the  Government,  in  supplying  the  soldier  or 
recruit  with  equipments  suitable  and  necessary  for  the 
discharge  of  his  military  duties,  retains  title  to  the  same. 
It  is  regarded  as  public  property,  whether  remaining  in 
a  public  depot  or  in  the  possession  of  the  individual 
soldier.  Lobosco  vs.  U.  S.,  183  Federal,  742.  Section 
5438  of  the  Revised  Statutes  makes  it  an  offense  for  any 
person  to  knowingly  purchase  or  receive  in  pledge  from 
a  soldier  or  sailor  any  arms,  equipment,  ammunition, 
clothing,  stores,  or  any  other  public  property,  and  it  is 
not  material  that  the  clothing  purchased  by  accused  from 
certain  marines  was  not  a  part  of  their  equipment,  but 
was  furnished  to  them  under  their  clothing  allowance. 
Lobosco  vs.  U.  S.,  183  Federal,  742.  Since  the  Govern- 
ment is  required  to  prove  guilty  knowledge  under  this 
section,  evidence  of  the  commission  of  other  similar  of- 
fenses by  accused  than  those  charged  in  the  indictment 
is  admissible.  Lobosco  vs.  U.  S.,  183  Federal,  742.  See 
also  Carter  vs.  McClaughry,  183  U.  S.,  365.  It  is  not  es- 
sential that  the  voucher  or  other  thing  should  in  itself 
contain  false  matter,  but  whether  the  claim  is  honest  or 
fraudulent  is  to  be  determined  from  all  the  facts.  Dim- 
mick  vs.  U.  S.,  116  Federal,  825. 


CHAPTER  X. 

OFFENSES  AGAINST  NEUTRALITY. 

§  234.     Neutrality  Generally. 
234a.  President's  Power  to  Enforce  Neutrality. 
234b.  Belligerent  has  no  Right  to  Bring  Prize  into  U.  S.  Port. 

235.  Accepting  Foreign  Commission. 

236.  Enlisting  in  Foreign  Service. 

237.  Arming  Vessels  Against  People  at  Peace  With  the  United  States. 

238.  Forfeiture  Without  Conviction. 

239.  Augmenting  Force  of  Foreign  Vessel  of  War. 

240.  Military  Expeditions  Against  People  at  Peace  With  the  United 

States. 

241.  Enforcement  of  Foregoing  Provisions. 

241a.  The  President's  Authority  Under  This  Section. 

242.  Compelling  Foreign  Vessels  to  Depart. 

243.  Armed  Vessels  to  Give  Bond  on  Clearance. 

244.  Detention  by  Collector  of  Customs. 

245.  Construction  of  This  Chapter. 

§  234.  The  word  "neutrality,"  as  used  with  reference 
to  governments  and  international  law,  has  no  different 
meaning  than  that  given  to  it  in  the  ordinary  course  of 
affairs.  The  Century  Dictionary  defines  it  as  "the  state 
of  being  neutral,  or  of  being  unengaged  in  a  dispute  or 
contest  between  others;  the  taking  of  no  part  on  either 
side;  in  international  law,  the  attitude  and  condition  of  a 
nation  or  state,  which  does  not  take  part,  directly  or  indi- 
rectly, in  a  war  between  other  states,  but  maintains  rela- 
tions of  amity  with  all  the  contending  parties."  The  29 
Volume  of  the  "Cyc,"  at  page  675,  citing  the  Three 
Friends,  166  U.  S.,  page  1,  41  Law  Ed.,  page  897,  deduces 
that  neutrality,  strictly  speaking,  consists  in  abstinence 
from  any  participation  in  a  public,  private,  or  civil  war, 
and  impartiality  of  conduct  toward  both  parties.  That 
authority,  continuing,  says: 

"The  nation  which,  while  preserving  its  natural  liberty  and  its 
independence,  remains  at  peace  while  other  nations  are  at  war,  and 
which  continues  to  maintain  with  the  two  belligerent  nations  the 
friendly  relations  of  commerce,  or  only  of  sociality,  or  of  humanity,  ex- 
isting before  the  out-break  of  hostilities,  may  call  itself  neutral.  This 
quality   imposes  upon   it  the   obligations   which   may  be  summed   up 

(413) 


414  Federal  Criminal  Law  Procedltre. 

in  two  principles,  and  which  embraces  all  the  others:  abstaining 
from  all  acts  of  hostility,  direct  or  indirect:  and  perfect  impartiality 
between  the  two  nations  at  war,  respecting  all  matters  affecting  the 
war." 

From  these  definitions,  one  readily  discovers  that  neu- 
trality, in  a  measure,  interferes  with  the  liberty  and  inde- 
pendence of  the  nation  preserving  that  status. 

The  United  States  was  one  of  the  earliest  countries  to 
preserve  by  law  its  neutrality  with  reference  to  conflicts 
between  other  governments  and  nationalities.  While 
there  are  international  punishments  for  a  failure  to  ob- 
serve the  full  measure  of  neutrality,  the  most  effective 
preventive  is  the  penal  Code,  which  creates  offenses  under 
this  head,  and  affixes  punishments  therefor;  and  in  con- 
struing .such  statutes,  the  same  rules  are  to  be  applied 
and  observed  as  govern  the  construction  of  other  penal 
statutes. 

§  234a.  President's  Power  to  Enforce  Neutrality .- 
District  Judge  Maxey  in  ex  parte  Orozco,  201  Federal, 
106,  questioned  the  power  of  the  President  to  use  the 
military  power  of  the  United  States  to  arrest  and  im- 
prison for  neutrality  violations  and  held  that  the  fifth 
amendment  to  the  Federal  constitution  guaranteeing  im- 
munity against  being  deprived  of  liberty  without  due 
process  of  law,  and  the  fourth  amendment  declaring  that 
warrants  shall  not  be  issued  except  on  probable  cause  sup- 
ported by  oath  or  affirmation  and  the  sixth  amendment 
guaranteeing  to  the  accused  a  speedy  and  public  trial  by 
a  jury  in  the  district  where  the  crime  was  committed, 
were  applicable  to  aliens  sojourning  in  the  United  States, 
as  well  as  to  citizens,  and  in  time  of  peace  the  President 
has  no  right  to  use  the  military  force  for  arrest. 

The  relator,  who  was  a  Mexican  citizen,  was  discharged 
from  the  custody  of  the  military  authorities  upon  habeas 
corpus. 

The  same  district  judge,  in  the  case  of  United  States  vs. 
Chavez,  held  that  the  word  export,  which  was  used  in  the 
joint  congressional  resolution  of  March  14,  1912,  which 
authorized  the  president  to  make  proclamation  against 
the  exporting  of  arms  or  munitions  of  war  under  certain 


Offenses  Against  Neutrality.  415 

conditions,  was  limited  to  a  transportation  of  arms  or 
munitions  of  war  from  any  place  in  the  United  States  to 
"such  country,"  that  is,  such  foreign  country;  and  hence 
a  charge  that  accused  with  intent  to  export  munitions  of 
war  from  the  city  of  El  Paso  to  a  place  in  Mexico  in  vio- 
lation of  the  Presidential  proclamation,  did  make  a  ship- 
ment of  cartridges,  etc.,  by  transporting  them  on  his  per- 
son from  one  point  in  the  city  of  El  Paso  to  another  point 
therein,  did  not  charge  a  violation  of  the  resolution,  and 
sustained  a  demurrer  to  the  indictment. 

Sec.  234  b.  Belligerent  has  no  Right  to  Bring  Prize 
into  U.  S.  Port. 

A  belligerent  has  no  right  to  bring  prizes  into  a  United 
States  port  for  an  indefinite  stay,  Berg  vs.  Bas  Company 
&  Harrison,  U.  S.  Supreme  Ct.  Oct.  term,  1916,  Mar.  6, 
1917. 

§  235.  Accepting  Foreign  Commission. — Section  9  of 
the  new  Code  re-enacts  old  Section  5281,  and  is  in  the 
following  language: 

"Sec.  9.  Every  citizen  of  the  United  States  who,  within  the  terri- 
tory or  jurisdiction  thereof,  accepts  and  exercises  a  commission  to 
serve  a  foreign  prince,  state,  colony,  district,  or  people,  in  war,  by 
land  or  by  sea,  against  any  prince,  state,  colony,  district,  or  people 
with  whom  the  United  States  are  at  peace,  shall  be  fined  not  more 
than  two  thousand  dollars  and  imprisoned  not  more  than  three  years." 

The  wording  of  the  statute  bears  the  construction  that 
the  mere  acceptance  of  a  commission  of  the  sort  therein 
described  would  not  create  the  offense.  It  is  necessary 
that  some  overt  act  be  committed  under  the  commission, 
such  as  raising  men  for  the  enterprise,  collecting  provis- 
ions, munitions  of  war,  or  any  other  act  which  shows  an 
exercise  of  the  authority  which  the  commission  is  sup- 
posed to  confer.  29  Cyc,  678;  in  re  Charge  to  Grand 
Jury,  30  Federal  Case  No.  18265,  2  McLean,  1. 

§  236.  Enlisting  in  Foreign  Service. — Old  Section 
5282  becomes  Section  10  of  the  new  Code,  in  the  following- 
words: 

"Whoever,  within  the  territory  or  jurisdiction  of  the  United  States, 
enlists,  or  enters  himself,  or  hires  or  retains  another  person  to  en- 
list or  enter  himself,  or  to  go  beyond  the  limits  or  jurisdiction  of  the 


416  Federal  Criminal  Law  Procedure. 

United  States  with  intent  to  be  enlisted  or  entered  in  the  service 
of  any  foreign  prince,  state,  colony,  district,  or  people,  as  a  soldier, 
or  as  a  marine  or  seaman,  on  board  of  any  vessel  of  war,  letter  of 
marque,  or  privateer,  shall  be  fined  not  more  than  one  thousand 
dollars,  and  imprisoned  not  more  than  three  years." 

The  Courts  have  held,  in  construing  this  section,  Unit- 
ed States  vs.  Obrien  et  al,  75  Federal,  900,  that  persons 
are  not  only  prohibited  from  enlisting  in  this  country  as 
a  soldier  of  any  foreign  power,  but  they  are  also  pro- 
hibited from  hiring  or  retaining  any  other  person  to  en- 
list or  to  go  abroad  for  the  purpose  of  enlisting.  The 
Court  also  observes  in  that  case,  which  seems  to  have 
been  followed,  that  the  statute  does  not  prohibit  persons 
within  our  jurisdiction,  whether  citizens  or  not,  going  as 
individuals  to  foreign  states,  and  there  enlisting  in  their 
armies,  and  that  individuals  may  go  abroad  to  enlist  in 
any  number  and  in  any  way  they  see  fit;  by  regular  line 
of  steamers,  by  chartering  a  vessel,  or  in  any  other  man- 
ner, either  separately,  or  associated,  provided  always, 
that  they  do  not  go  as  a  military  expedition,  or  set  on  foot 
or  begin  within  our  jurisdiction  a  military  expedition  or 
enterprise,  to  be  carried  on  for  this  country,  or  provide 
or  prepare  the  means  therefor. 

If,  however,  a  military  expedition  or  enterprise  has  in 
fact  been  prepared  in  this  country,  and  carried  by  sea  to 
a  foreign  shore,  then  all  persons  who  planned  for  it,  or 
prepared  for  it  here,  or  knowingly  took  part  in  the  trans- 
portation of  it,  are  guilty  under  the  statute.  TJ.  S.  vs. 
Obrien,  75  Federal,  page  900. 

Sec.  236  a.     Enlisting  in  Foreign  Service,  Continued. 

Sec.  10,  quoted  above  is  given  a  proviso  in  the  Act  of 
May  7,  1917,  to  the  effect  that  a  nation  which  is  at  war 
with  a  nation  with  which  the  United  States  is  at  war  is 
excepted. 

§  237.  Arming  Vessels  Against  People  at  Peace  with 
the  United  States.— Old  Section  5238  becomes  new  Sec- 
tion 11,  and  is  as  follows: 

"Sec.  11.    Whoever,  within  the  territory  or  jurisdiction  of  the  United 
States,  fits  out  and  arms,  or  attempts  to  fit  out  and  arm,  or  procures 


Offenses  Against  Neutrality.  417 

to  be  fitted  out  and  armed,  or  knowingly  is  concerned  in  the  fur- 
nishing, fitting  out,  or  arming  of  any  vessel,  with  intent  that  such 
vessel  shall  be  employed  in  the  service  of  any  foreign  prince  or  state, 
or  of  any  colony,  district,  or  people,  to  cruise  or  commit  hostilities 
against  the  subjects,  citizens,  or  property  of  any  foreign  prince  or 
state,  or  of  any  colony,  district,  or  people,  with  whom  the  United  States 
are  at  peace,  or  whoever  issues  or  delivers  a  commission  within  the 
territory  or  jurisdiction  of  the  United  States  for  any  vessel,  to  the 
intent  that  she  may  be  so  employed,  shall  be  fined  not  more  than  ten 
thousand  dollars,  and  imprisoned  not  more  than  three  years.  And 
every  such  vessel,  her  tackle,  apparel,  and  furniture,  together  with  all 
materials,  arms,  ammunition,  and  stores  which  may  have  been  pro- 
cured for  the  building  and  equipment  thereof,  shall  be  forfeited; 
one-half  to  the  use  of  the  informer  and  the  other  half  to  the  use  of 
the  United  States." 

The  statute  contains  two  methods  of  punishment,  it 
will  be  noticed:  one  against  the  person,  and  one  against 
the  property;  that  is,  the  imprisonment  of  the  offender 
and  the  forfeiture  of  his  vessel.  The  Supreme  Court  of 
the  United  States  in  Wiborg  et  al.  vs.  United  States,  163 
U.  S.,  page  632,  41  Law  Ed.,  page  289,  in  passing  upon  a 
case  that  originated  in  Pennsylvania,  under  Section  5286, 
hereinafter  noted,  the  facts  of  which  showed  in  substance, 
that  the  "Horsa,"  a  Danish  steamer  engaged  in  the  fruit 
business  at  Philadelphia,  cleared  from  Philadelphia  for 
Jamaica,  having  only  a  small  cargo;  that  thereafter,  near 
Barnegat,  off  the  Jersey  coast,  she  was  loaded  with  a 
cargo  of  men  and  rifles,  swords,  machettes,  cartridges, 
and  other  munitions  of  war,  which  cargo  was  subsequent- 
ly delivered  to  Cuba,  where  there  was  an  insurrection  of 
the  Cubans  against  the  Spaniards,  said  in  substance,  a 
military  expedition  or  enterprise  is  entered  upon  when 
men  with  knowledge  of  the  enterprise  combine  and  or- 
ganize in  this  country,  and  are  carried  with  arms  and 
ammunition  under  their  control,  by  a  tug,  thirty  or  forty 
miles  out  to  sea,  to  a  steamer,  on  which  they  embark  and 
drill,  and  by  which  they  are  taken  to  Cuba,  where  they 
disembark  to  effect  an  armed  landing  on  the  coast,  with 
intent  to  make  war  against  a  government  with  which  the 
United  States  is  at  peace;  and  in  determining  whether 
the  combination  was  lawful  or  not,  the  declarations  of 
those  engaged  in  it,  explanatory  of  acts  done  in  further- 

27 


418  Federal  Criminal  Law  Procedure. 

ance  of  its  object,  are  competent  evidence  after  the  com- 
bination has  been  proved. 

Another  interesting  authority  under  this  section,  as 
well  as  other  sections  under  this  chapter,  is  the  Lauradra, 
85  Federal,  760,  which  was  a  case  that  originated  upon 
a  similar  state  of  facts  to  the  Wiborg  case,  and  was  the 
loading  of  a  fruit  vessel  off  the  American  coast,  near 
Barnegat,  with  men  and  munitions,  for  engagement  in 
the  Cuban  revolution.  In  that  case,  the  Court  observed 
that  while  it  was  not  the  purpose  of  our  neutrality  laws 
in  any  manner  to  check  or  interfere  with  the  commercial 
activity  of  citizens  of  the  United  States,  or  of  others  re- 
siding therein,  and  interested  in  commercial  transactions, 
nor  to  render  unlawful  mere  commercial  ventures  in  con- 
traband of  war,  they  were  designed  to  prohibit  acts  and 
preparations  on  the  soil  or  waters  of  the  United  States 
not  originating  with  a  due  regard  for  commercial 
interest,  but  of  a  nature  distinctly  hostile  in  a  material 
sense  to  a  friendly  power  engaged  in  hostilities,  and  cal- 
culated or  tending  to  involve  this  country  in  war,  whether 
an  incidental  or  direct  commercial  profit  does  or  does  not 
result  therefrom. 

District  Judge  Bradford,  in  considering  the  above-men- 
tioned case,  held  that  it  was  necessary,  for  the  forfeiture 
of  the  vessel  under  5283,  that  the  furnishing,  fitting  out, 
or  arming  of  her  for  the  prohibited  should  be  completed 
within  the  limits  of  the  United  States.  It  was  also  de- 
termined that  it  was  sufficient,  if  by  pre-arrangement 
within  the  limits  of  the  United  States,  the  vessel  having 
been  procured  there,  the  furnishing,  fitting  out,  or  arming 
was  to  be  effected  or  completed  after  she  had  gone  beyond 
the  limits  of  the  United  States;  and  further,  that  the 
intent  that  a  vessel  furnished,  fitted  out,  or  armed  to 
cruise  or  commit  hostilities  against  the  subjects  or  prop- 
erty of  a  foreign  prince  with  whom  the  United  States  is  at 
peace,  shall  be  formed  within  the  limits  of  the  United 
States,  and  shall  be  of  a  fixed  and  unconditional  nature. 
If  such  intent  originates  on  the  high  seas,  beyond  the 
limits  of  the  United  States,  though  on  an  American  vessel, 


Offenses  Against  Neutrality.  419 

which  then,  for  the  first  time,  is  intended  to  commit  such 
hostilities,  no  forfeiture  accrues  under  the  section. 

Sec.  237  a.     Arming  Vessels  Against  People  at  Peace 
with  the  United  States  Continued. 

See  the  Act  of  June  15,  1917. 

§  238.  Forfeiture  Without  Conviction. — On  the  au- 
thority of  the  United  States  against  the  Three  Friends, 
166  U.  S.,  page  1,  Lawyers'  Edition,  Book  41,  page  915,  it 
may  be  stated  as  the  law  that  a  civil  suit  in  rem  for  the 
condemnation  of  the  vessel  is  not  a  criminal  prosecution, 
and  the  success  of  such  suit  does  not  depend  upon  the 
conviction  of  a  person  or  persons  doing  the  acts  de- 
nounced in  the  statute.  The  two  proceedings  are  wholly 
independent,  and  pursued  in  different  courts.  Indeed, 
forfeiture  might  be  decreed,  if  the  proof  showed  the  pro- 
hibited acts  were  committed,  though  lacking  as  to  the 
identity  of  the  person  by  whom  they  were  committed.  In 
deciding  the  Three  Friends  case,  and  giving  expression 
to  the  opinion  as  above  quoted  in  substance,  the  Supreme 
Court  cited  the  "Palmyra,"  25  U.  S.,  12  Wheat.,  1;  6 
Law  Ed.,  531;  "Ambrose  Light,"  25  Federal,  408;  the 
"Meteor,"  17  Federal  Cases,  178.  The  Supreme  Court 
also  held  in  the  Three  Friends  case,  cited  supra,  that  the 
release  on  bond  of  a  vessel  charged  with  liability  to  for- 
feiture under  this  section,  before  answer  or  hearing,  and 
against  the  objection  of  the  United  States,  when  such 
release  might  result  in  a  hostile  expedition  against  a 
friendly  power,  should  not  be  allowed ;  and  if  such  an  or- 
der of  release  is  improvidently  made,  the  vessel  should  be 
recalled. 

§  239.  Augumenting  Force  of  Foreign  Vessel  of  War. 
— Revised  Statutes  5285  becomes  Section  12  of  the  new 
Code,  in  the  following  words: 

"Sec.  12.  Whoever,  within  the  territory  or  jurisdiction  of  the 
United  States,  increases  or  augments,  or  procures  to  be  increased  or 
augmented,  or  knowingly  is  concerned  in  increasing  or  augmenting, 
the  force  of  any  ship  of  war,  cruiser,  or  other  armed  vessel  which, 
at  the  time  of  her  arrival  within  the  United  States,  was  a  ship  of 
war,    or    cruiser,    or    armed    vessel,    in    the    service    of    any    foreign 


420  Federal  Criminal  Law  Procedure. 

prince  or  state,  or  of  any  colony,  district,  or  people,  or  belonging 
to  the  subjects  or  citizens  of  any  such  prince  or  state,  colony,  district, 
or  people,  the  same  being  at  war  with  any  foreign  prince  or  state,  or 
of  any  colony,  district,  or  people  with  whom  the  United  States  are  at 
peace,  by  adding  to  the  number  of  the  guns  of  such  vessel,  or  by 
changing  those  on  board  of  her  for  guns  of  a  larger  caliber,  or  by 
adding  thereto  any  equipment  solely  applicable  to  war,  shall  be  fined 
not  more  than  one  thousand  dollars  and  imprisoned  not  more  than  one 
year." 

This  statute,  in  substance,  makes  it  an  offense  lor  any 
person  to  increase  or  augment,  within  the  territory  of  the 
United  States,  any  war  vessel  belonging  to  a  foreign  pow- 
er. Such  equipment,  within  the  meaning  of  the  statute, 
must  be  intended  solely  for  the  purpose  of  war.  See  Aler- 
ta  vs.  Moran,  9  Cranch,  359;  U.  S.  vs.  Grassin,  3  Wash- 
ington, 65;   26  Federal  Cases,  10. 

§  240.  Military  Expeditions  Against  People  at  Peace 
with  the  United  States. — Old  Section  5286  becomes  Sec- 
tion 13,  as  follows: 

"Sec.  13.  Whoever,  within  the  territory  or  jurisdiction  of  the 
United  States,  begins,  or  sets  on  foot,  or  provides  or  prepares  the 
means  for,  any  military  expedition  or  enterprise,  to  be  carried  on 
from  thence  against  the  territory  or  dominions  of  any  fore'gn  prince 
or  state,  or  of  any  colony,  district,  or  people,  with  whom  the  United 
States  are  at  peace,  shall  be  fined  not  more  than  three  thousand  dol- 
lars and  imprisoned  not  more  than  three  years." 

In  the  language  of  Judge  Bradford,  as  cited  in  United 
States  vs.  Murphy,  84  Federal,  609,  the  broad  purpose  of 
Section  5286  of  the  United  States  Revised  Statutes  is  to 
prevent  complications  between  this  Government  and  for- 
eign powers.  It  is  not  the  intent  of  that  section  in  any 
manner  to  check  or  interfere  with  the  commercial  activi- 
ties of  citizens  of  the  United  States,  or  of  others  residing 
within  the  United  States  and  interested  in  commercial 
transactions;  but  to  prevent  the  use  of  the  soil  or  waters 
of  the  United  States  as  a  base  from  which  military  expe- 
ditions or  military  enterprises  shall  be  carried  on  against 
foreign  powers  with  which  the  United  States  is  at  peace. 
And  under  the  authority  of  that  case,  the  providing  of  the 
means  of  transportation  of  a  military  enterprise  to  be 
carried  on  from  the  United  States  against  the  Spanish 


Offenses  Against  Neutrality.  421 

rule  in  Cuba,  was,  within  the  meaning  of  that  section,  a 
preparing  of  the  means  for  such  military  enterprise,  to  be 
so  earned  on;  and  if  done  with  knowledge  on  the  part 
of  the  person  so  providing  the  means  of  transportation, 
of  the  character  and  purpose  of  such  enterprise,  the  same 
is  denounced  by  the  statute. 

In  Wiborg  vs.  United  States,  163  U.  S.,  632,  the  Su- 
preme Court  held  that  a  hostile  expedition  dispatched 
from  the  ports  of  the  United  States,  is  within  the  words 
"  earned  on  from  thence." 

Under  the  authority  of  Hart  vs.  United  States,  84  Fed- 
eral, 799,  the' question  as  to  whether  the  men  and  muni- 
tions of  war,  for  which  the  accused  furnished  transporta- 
tion, constituted  a  "military  expedition"  in  the  meaning 
of  the  statute,  or  the  men  were  traveling  as  individuals, 
without  organization  or  concert  of  action,  and  the  arms 
and  munitions  were  carried  as  articles  of  legitimate  com- 
merce, and  whether  the  accused  had  guilty  knowledge  of 
the  facts  constituting  the  military  expedition  (if  it  were 
such),  are  all  questions  for  the  jury,  under  proper  in- 
structions. 

The  words  in  the  statute,  "begins,  or  sets  on  foot,"  are 
construed  to  mean,  in  charge  to  grand  jury,  1838  Second 
McLain,  U.  S.,  1;.  30  Federal  Case  No.  18265,  the  making 
of  preparations  which  showed  an  intent  to  set  such  an  ex- 
pedition on  foot;  as,  for  instance,  the  contribution  of 
money,  clothing  for  troops,  provisions,  arms,  or  any 
other  contribution  which  shall  tend  to  forward  the  expe- 
dition or  to  add  to  the  comfort  or  maintenance  of  those 
who  are  engaged  in  it. 

District  Judge  Brown,  in  United  States  vs.  Nunez  et  al, 
82  Federal,  599,  uses  the  following  language: 

"What  constitutes  a  military  expedition?  What  are  some  of  the 
features  that  mark  a  military  enterprise  or  expedition  as  different 
from  a  peaceable  transportation  of  passengers,  arms,  ammunition, 
or  goods.  The  essential  features  of  military  operations  are  evident 
enough.  They  are  concert  of  action,  unity  of  action  by  a  body  or- 
ganized and  acting  together,  acting  by  means  of  weapons  of  some  kind, 
acting  under  command,  leadership:  these  are  the  three  most  essential 
elements  of  military  action." 


422  Federal  Criminal  Law  Procedure. 

The  Court  held  in  United  States  vs.  0 'Sullivan,  27  Fed- 
eral Cases  No.  15975,  that  it  is  not  essential  to  the  case  that 
the  expedition  should  start,  much  less  that  it  should  have 
been  accomplished.  To  "begin"  is  not  to  finish;  to  "set 
on  foot"  is  not  to  accomplish;  to  provide  a  powder,  is  not 
to  put  to  it  the  match  or  the  percussion.  It  is  not  neces- 
sary that  the  vessel  should  actually  sail,  nor  is  it  neces- 
sary that  war  should  exist  between  the  nation  on  which 
the  descent  is  to  be  made  with  another  nation. 

District  Judge  Brawley,  in  United  States  vs.  Hughes, 
70  Federal,  972,  held  upon  preliminary  examination  that 
testimony  which  showed  that  the  steamship  of  which  the 
defendant  was  captain,  after  leaving  the  port  of  New 
York,  and  passing  outside  of  Sandy  Hook,  stopped  two 
or  three  miles  from  shore;  that  two  tugs  approached  and 
put  on  board  thirty-five  men  with  several  boxes  and  three 
boats;  that  the  boxes  were  opened  and  guns  and  arms 
were  taken  out;  that  during  the  voyage  the  men  so  taken 
on  board  were  constantly  drilled;  that  the  men  spoke 
Spanish,  and  some  of  them  said  they  were  going  to  Cuba 
to  fight;  that  when  the  steamer  approached  the  coast  of 
Cuba  at  night,  the  lights  were  extinguished  and  that  the 
men  disembarked  there,  taking  their  arms  with  them, 
using  their  own  three  boats  and  one  lent  by  the  steamer, 
was  sufficient  to  raise  probable  cause  to  believe  that  the 
captain  had  violated  the  statute. 

The  necessary  ingredients  of  the  offense  denounced  by 
this  statute  are  plainly  set  out  in  charges  to  the  grand 
jury,  5  McLean,  306,  30  Federal  Case,  18267. 

Other  cases  bearing  upon  different  phases,  and  illus- 
trating the  construction  of  the  statute  with  reference  to 
such  phases  by  the  Court,  are  the  following:  U.  S.  vs. 
Pirates,  5  Wheat.,  184;  U.  S.  vs.  Hallock,  154  U.  S.,  537; 
Duval  1  vs.  U.  S.,  154  U.  S.,  548;  the  "Chapman,"  4  Saw., 
501;  the  "Carondelet,"  37  Federal,  799;  City  of  Mexico, 
32  Federal,  105;  U.  S.  vs.  the  "Resolute,"' 40  Federal, 
543;  U.  S.  vs.  the  "Robert"  and  "Minnie,"  47  Federal, 
84;  U.  S.  vs.  Trumbull,  48  Federal,  99;  the  "Itata,"  46 
Federal,  646;  U.  S.  vs.  Ybanez,  53  Federal,  536;  Hen- 
dricks vs.  Gonzales,  67  Federal,  351;  U.  S.  vs.  Pena,  69 
Federal,  983;    U.  S.  vs.  O'Brien,  75  Federal,  900.     The 


Offenses  Against  Neutrality.  423 

Supreme  Court,  in  United  States  vs.  Quincey,  6  Peters, 
445,  gives  the  substance  of  the  form  of  an  indictment. 
This  was  a  case  for  the  fitting  out  of  a  foreign  vessel  in 
an  American  port. 

Sec.  240  a.  Military  Expeditions  With  People  at 
Peace  With  the  United  States,  Continued. 

See  Act  of  June  15,  1917. 

To  send  a  spy  is  a  violation  of  the  foregoing  section,  U. 
S.  vs.  Sander,  241  F.  417. 

The  Wellard  Canal  ease  is,  U.  S.  vs.  Tauscher,  233  F. 
597. 

Expeditions  against  Great  Britian,  U.  S.  vs.  Chakraber- 
ty,  244  F.  287. 

A  single  individual  may  violate  this  section,  U.  S.  vs. 
Ram,  254  F.  635. 

For  other  phases  of  the  statute,  including  the  suffi- 
ciency of  the  indictment,  acts  and  evidence  see  Jacobsen 
vs.  U.  S.,  272  F.  399;  Orozco  vs.  U.  S.,  237  F.  1008; 
U.  S.  vs.  Bopp,  230  F.  723. 

§  241.  Enforcement  of  Foregoing  Provisions. — Sec- 
tion 5287  of  the  1878  Statutes  becomes  Section  14  of  the 
new  Code,  in  the  following  words: 

"Sec.  14.  The  district  courts  shall  take  cognizance  of  all  complaints, 
by  whomsoever  instituted,  in  cases  of  capture  made  within  the  waters 
of  the  United  States,  or  within  a  marine  league  of  the  coasts  or  shores 
thereof.  In  every  case  in  which  a  vessel  is  fitted  out  and  armed,  or 
attempted  to  be  fitted  out  and  armed,  or  in  which  the  force  of  any 
vessel  of  war,  cruiser,  or  other  armed  vessel  is  increased  or  augment- 
ed, or  in  which  any  military  expedition  or  enterprise  is  begun  or  set 
on  foot,  contrary  to  the  provisions  and  prohibitions  of  this  chapter; 
and  in  every  case  of  the  capture  of  a  vessel  within  the  jurisdiction 
or  protection  of  the  United  States  as  before  defined;  and  in  every 
case  in  which  any  process  issuing  out  of  any  court  of  the  United 
States  is  disobeyed  or  resisted  by  any  person  having  the  custody  of 
any  vessel  of  war,  cruiser,  or  other  armed  vessel  of  any  foreign  prince 
or  state,  or  of  any  colony,  district,  or  people,  or  of  any  subjects  or 
citizens  of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or 
people,  it  shall  be  lawful  for  the  President,  or  such  other  person  as 
he  shall  have  empowered  for  that  purpose,  to  employ  such  part  of  the 
land  or  naval  forces  of  the  United  States,  or  of  the  militia  thereof, 
for  the  purpose  of  taking  possession  of  and  detaining  any  such  vessel, 
with  her  prizes,  if  any,  in  order  to  enforce  the  execution  of  the  pro- 
hibitions   and    penalties    of    this    chapter,    and    the   restoring   of   such 


424  Federal  Criminal  Law  Procedure. 

prizes  in  the  cases  in  which  restoration  shall  be  adjudged;  and  also 
for  the  purpose  of  preventing  the  carrying  on  of  any  such  expedition 
or  enterprise  from  the  territory  or  jurisdiction  of  the  United  States 
against  the  territory  or  dominion  of  any  foreign  prince  or  state,  or 
of  any  colony,  district,  or  people  with  whom  the  United  States  are 
at  peace." 

In  Gelston  vs.  Hoyt,  3  Wheat.,  246,  the  Supreme  Court, 
delivering  its  opinion  through  Mr.  Justice  Storey,  held 
that  a  plea,  to  justify  a  seizure  and  detention  under  this 
statute  as  it  was  originally,  which  is  the  soul  of  the 
present  statute,  must  aver  that  the  naval  or  military  force 
of  the  United  States  was  employed  for  that  purpose,  and 
that  the  seizor  belonged  to  the  force  so  employed.  The 
Court  also  held  that  the  Act  was  not  to  be  resorted  to, 
except  in  cases  where  a  seizure  or  detention  could  not  be 
enforced  by  the  ordinary  civil  power.  See  also  Stoughton 
vs.  Dimick,  3  Blatchf.,  356.  The  Attorney  General,  in  17 
Opinions  of  Attorneys  General',  242,  held  that  the  au- 
thority given  by  this  section  may  be  exercised  when  there 
is  an  organized  armed  body  of  men  who  intend  to  invade 
the  territory  of  a  people  with  whom  the  United  States 
are  at  peace,  when  the  object  of  such  invasion  is  plunder. 

§  241a.  The  President's  Authority  Under  This  Sec- 
tion.— Ex  parte  Orozco,  201  Federal,  107. 

§  242.  Compelling  Foreign  Vessels  to  Depart. — Old 
Section  5288  becomes  new  Section  15,  which  is  as  follows: 

"Sec.  15.  It  shall  be  lawful  for  the  President,  or  such  person  as 
he  shall  empower  for  that  purpose,  to  employ  such  part  of  the  land  or 
naval  forces  of  the  United  States,  or  of  the  militia  thereof,  as  shall 
be  necessary  to  compel  any  foreign  vessel  to  depart  the  United  States 
in  all  cases  in  which,  by  the  laws  of  nations  or  the  treaties  of  the 
United  States,  she  ought  not  to  remain  within  the  United  States." 

§  243.    Armed  Vessels  to  Give  Bond  on  Clearance. — 

Section  5289  of  the  old  statutes  is  re-enacted  into  Section 
16  of  the  new  Code,  as  follows: 

"Sec.  16.  The  owners  or  consignees  of  every  armed  vessel  sailing 
out  of  the  ports  of,  or  under  the  jurisdiction  of,  the  United  States, 
belonging  wholly  or  in  part  to  citizens  thereof,  shall,  before  clearing 
out  the  same,  given  bond  to  the  United  States,  with  sufficient  sureties, 
in  double  the  amount  of  the  value  of  the  vessel  and  cargo  on  board, 


Offenses  Against  Neutrality.  425 

including  her  armament,  conditioned  that  the  vessel  shall  not  be  em- 
ployed by  such  owners  to  cruise  or  commit  hostilities  against  the 
subjects,  citizens,  or  property  of  any  foreign  prince  or  state,  or  of 
any  colony,  district,  or  people  with  whom  the  United  States  are  at 
peace." 

The  Supreme  Court,  in  United  States  vs.  Quincey,  6 
Peters,  445,  8  Law  Ed.,  458,  held  that  the  statute  did  not 
prohibit  armed  vessels  belonging  to  citizens  of  the  United 
States  from  sailing  out  of  our  ports.  It  only  requires 
the  owners  to  give  security  that  such  vessels  shall  not 
be  employed  by  them  to  commit  hostilities  against  for- 
eign powers  at  peace  with  the  United  States. 

§  244.  Detention  by  Collector  of  Customs. — Section 
5290  of  the  old  statutes  becomes  Section  17  of  the  new 
Code,  and  is  as  follows: 

"Sec.  17.  The  several  collectors  of  the  customs  shall  detain  any 
vessel  manifestly  built  for  warlike  purposes,  and  about  to  depart  the 
United  States,  or  any  place  subject  to  the  jurisdiction  thereof,  the 
cargo  of  which  principally  consists  of  arms  and  munitions  of  war, 
when  the  number  of  men  shipped  on  board,  or  other  circumstances, 
render  it  probable  that  such  vessel  is  intended  to  be  employed  by  the 
owners  to  cruise  or  commit  hostilities  upon  the  subjects,  citizens, 
or  property  of  any  foreign  prince  or  state,  or  of  any  colony,  district, 
or  people  with  whom  the  United  States  are  at  peace,  until  the  decision 
of  the  President  is  had  thereon,  or  until  the  owner  gives  such  bond 
and  security  as  is  required  of  the  owners  of  armed  vessels  by  the 
preceding  section." 

In  United  States  vs.  Quincey,  6  Peters,  445,  Law  Ed.,  8, 
458,  the  Supreme  Court  held  that  Collectors  are  not  au- 
thorized to  detain  vessels,  although  manifestly  built  for 
warlike  purposes,  and  about  to  depart  from  the  United 
States,  unless  circumstances  shall  render  it  probable  that 
such  vessels  are  intended  to  be  employed  by  the  owners 
to  commit  hostilities  against  some  foreign  power  at  peace 
with  the  United  States.  All  the  latitude,  therefore,  nec- 
essary for  commercial  purposes,  is  given  to  our  citizens 
and  they  are  restrained  onlv  from  such  acts  as  are  cal- 
culated  to  involve  the  country  in  war. 

In  Hendricks  vs.  Gonzales,  67  Federal,  351,  the  Circuit 
Court  of  Appeals  for  the  Second  Circuit  used  this  lan- 
guage : 


426  Federal  Criminal  Law  Procedure. 

"It  is  not  an  infraction  of  the  international  obligation,  to  permit 
an  armed  vessel  to  sail,  or  munitions  of  war  to  be  sent,  from  a  neutral 
country  to  a  belligernt  port  for  sale  as  articles  of  commerce;  and 
neutrals  may  lawfully  sell  at  home  to  a  belligerent  purchaser,  or  carry 
themselves  to  the  belligerents,  articles  which  are  contraband  of  war. 
It  is  the  right  of  the  other  belligerent  power  to  seize  and  capture 
such  property  in  transit;  but  the  right  of  the  neutral  state  to  sell 
and  transport,  and  of  the  hostile  power  to  seize,  are  conflicting  rights, 
and  neither  can  impute  misconduct  to  the  other.  The  penalty  which 
affects  contraband  merchandise  is  not  extended  to  the  vessel  which 
carries  it,  unless  ship  and  cargo  belong  to  the  same  owner,  or  the 
owner  of  the  ship  is  privy  to  the  contraband  carriage;  and  ordina- 
rily the  punishment  of  the  ship  is  satisfied  by  visiting  upon  her  the 
loss  of  time  and  freight  and  expenses  which  she  incurs  in  consequence 
of  her  complicity.  On  the  other  hand,  it  is  the  duty  of  every  Govern- 
ment to  prevent  the  fitting  out,  arming,  or  equipping  of  vessels  which 
it  has  reasonable  ground  to  believe  are  intended  to  engage  in  naval 
warfare  with  a  power  with  which  it  is  at  peace." 

§  245.  Construction  of  this  Chapter. — Section  5291  of 
the  old  Revised  Statutes  becomes  Section  18  of  the  new 
Code,  in  the  following  words: 

"Sec.  18.  The  provisions  of  this  chapter  shall  not  be  construed  to 
extend  to  any  subject  or  citizen  of  any  foreign  prince,  state,  colony, 
district,  or  people  who  is  transiently  within  the  United  States  and 
enlists  or  enters  himself  on  board  of  any  vessel  of  war,  letter  of  mar- 
que, or  privateer,  which  at  the  time  of  its  arrival  within  the  United 
States  was  fitted  and  equipped  as  such,  or  hires  or  retains  another 
subject  or  citizen  of  the  same  foreign  prince,  state,  colony,  district, 
or  people  who  is  transiently  within  the  United  States  to  enlist  or 
enter  himself  to  serve  such  foreign  prince,  state,  colony,  district,  or 
people  on  board  such  vessel  of  war,  letter  of  marque,  or  privateer, 
if  the  United  States  shall  then  be  at  peace  with  such  foreign  prince, 
state,  colony,  district,  or  people.  Nor  shall  they  be  construed  to  pre- 
vent the  prosecution  or  punishment  of  treason,  or  any  piracy  defined 
by  the  laws  of  the  United  States." 


CHAPTER  XI. 

OFFENSES  AGAINST  ELECTIVE  FRANCHISE  AND  CIVIL  RIGHTS 

OF  CITIZENS. 

§  246.     System  of  Government,  Etc.,  Generally. 

247.  Conspiracy  to   Injure,   Etc.,   Citizens   in   the   Exercise   of  Civil 

Rights. 
247a.  Indiana  Election  Case,  and  Right  to  Vote,  Etc. 
247b.  Illustrative  Cases. 

248.  Right  to  Labor. 

249.  Other  Illustrations. 

250.  Other  Crimes  Committed   While  Violating  the  Preceding  Sec- 

tion. 

251.  Depriving  Persons  of  Civil  Rights  Under  Color  of  State  Law. 

252.  Conspiracy  to  Prevent  Persons  From  Holding  Office,  or  Officer 

From  Performing  His  Duty  Under  United  States,  Etc. 

253.  Unlawful  Presence  of  Troops  at  Election. 

254.  Intimidation  of  Voters  by  Officers,  Etc.,  of  Army  and  Navy. 

255.  Officers  of  Army  or  Navy  Prescribing  Qualifications  of  Voters. 

256.  Officers,    Etc.,   of   Army   or   Navy   Interfering   with   Officers   of 

Election,  Etc. 

257.  Persons    Disqualified    From    Holding    Office;     When    Soldiers, 

Etc.,  May  Vote. 
257a.  Primary  Elections. 

§  246.  Our  system  of  government,  being  dual  in  its 
nature,  brings  to  the  native  or  naturalized  individual  who 
maintains  his  citizenship  in  this  country,  two  protections, 
each  of  which  is,  however,  distinct  from  the  other,  and 
jealous  of  its  particular  territory  and  jurisdiction.  The 
State  has  certain  duties  which  it  must  fulfill  toward  its 
citizens,  to  the  complete  and  satisfactory  meeting  of 
which  the  Federal  Government  stands  as  sponsor  and 
guarantor.  On  the  other  hand,  the  Federal  Government 
must  exercise  its  superior  power  with  extreme  care,  lest 
it  encroach  upon  the  rights  and  sovereignties  of  the  re- 
spective States.  There  are  also  some  Federal  citizenship 
rights,  but  they  are  few  in  comparison  to  State  citizen- 
ship rights.  While  the  Federal  Government  has  author- 
ity, under  the  Federal  Constitution,  and  particularly  un- 
der Amendments  Six,  Thirteen,  and  Fourteen  to  that  in- 
strument, to  enforce  certain  private  rights  for  the  in- 
dividual at  the  hands  of  the  State,  the  vast  majoritv  of 

(427) 


428  Federal  Criminal  Law  Procedure. 

individual  rights  are  to  be  enforced  by  the  State  Govern- 
ments. 

Among  the  rights  and  privileges  which  have  been  recog- 
nized by  the  Courts  as  being  secured  to  the  citizens  of  the 
United  States  by  the  Constitution,  are  the  right  to  peti- 
tion Congress  for  a  redress  of  grievances;  the  right  to  vote 
for  Presidential  Electors  or  Members  of  Congress;  and 
the  right  of  every  judicial  and  executive  officer,  or  every 
person  engaged  in  the  service  or  kept  in  the  custody  of 
the  United  States  in  the  course  of  the  administration  of 
justice,  to  be  protected  from  lawless  violence.  There  is  a 
peace  of  the  United  States.  These  Federal  rights  have 
been  announced  by  the  Supreme  Court  in  their  order  as 
above  stated,  in  the  following  cases:  United  States  vs. 
Cruikshank,  92  IT.  S.,  542,  23  Law  Ed.,  588;  ex  parte 
Yarbrough,  110  U.  S.,  651,  28  Law  Ed.,  274;  in  re  Neagle, 
135  U.  S.,  1,  34  Law  Ed.,  55;  U.  S.  vs.  Logan,  12  Supreme 
Court,  617,  36  Law  Ed.,  429. 

These  Supreme  Court  discovered  rights  have  been 
somewhat  added  to  by  later  cases,  that  will  be  noticed  in 
the  discussion  under  old  Section  5508,  which  becomes 
new  Section  19. 

Difficult,  indeed,  it  is  to  invariably  trace  the  line  be- 
tween the  authorities  and  limitations  of  the  two  sover- 
eignties; and  this  difficulty  is  somewhat  increased  by  the 
desire  to  see  that  a  wronged  individual  secures  his  rights, 
regardless  of  setting  precedent  or  the  overriding  of  limi- 
tations that  must,  for  the  perpetuity  of  our  republic,  be 
observed. 

§  247.  Conspiracy  to  Injure,  Etc.,  Citizens  in  the  Ex- 
ercise of  Civil  Rights.— Section  5508  of  the  1878  Revised 
Statutes  becomes  Section  19  of  the  new  Code,  in  the  fol- 
lowing words: 

"Sec.  19.  If  two  or  more  persons  conspire  to  injure,  oppress,  threat- 
en, or  intimidate  any  citizen  in  the  free  exercise  or  enjoyment  of 
any  right  or  privilege  secured  to  him  by  the  Constitution  or  laws 
of  the  United  States,  or  because  of  his  having  so  exercised  the  same, 
or  if  two  or  more  persons  go  in  disguise  on  the  highway,  or  on 
the  premises  of  another,  with  intent  to  prevent  or  hinder  his  free 
exercise  or  enjoyment  of  any  right  or  privilege  so  secured,  they 
shall  be  fined  not  more  than  five  thousand  dollars  and  imprisoned 
not  more  than  ten  years,  and  shall,  moreover,  be  thereafter  ineligible 


Offenses  Against  Franchise,  etc.  429 

to  any  office,  or  place  of  honor,  profit,   or  trust  created   by  the  Con- 
stitution or  laws  of  the  United  States." 

Bearing  in  mind  the  two  sorts  of  rights  that  each  in- 
dividual citizen  in  this  country  is  supposed  to  enjoy, 
namely,  those  original  rights  which  he  has  as  a  citizen  of 
the  United  States  and  those  which  he  has  as  a  citizen  of 
the  State  in  which  he  resides,  it  will  be  at  once  under- 
stood that  the  foregoing  section  can  only  relate  to  and 
protect  such  rights  as  are  guaranteed  to  the  citizen  of 
the  United  States;  that  is,  to  the  rights  pertaining  to 
citizens  as  citizens  of  the  United  States.  The  easiest  way 
for  us  to  find  the  line  as  blazed  by  the  Courts,  is  to  review 
some  of  the  decisions. 

In  United  States  vs.  Eberhart,  127  Federal,  254,  Dis- 
trict Judge  Newman  held  that  an  indictment  which 
charged  the  defendants  with  conspiring,  etc.,  to  intimi- 
date B,  a  citizen  of  the  United  States,  in  the  free  exercise 
of  his  privilege  to  contract  and  being  contracted  with, 
his  right  of  personal  security  and  personal  liberty,  and 
the  overt  act  charged  was  the  seizing  of  B,  the  placing 
of  hand  cuffs  on  him  and  compelling  him,  by  force  and 
against  his  will,  to  enter  into  a  pretended  contract  to 
work  for  a  long  period  of  time,  stated  no  Federal  offense, 
because  the  citizens  right  to  personal  liberty  and  security 
was  within  the  primary  jurisdiction  of  the  State. 

In  McKenna  vs.  United  States,  127  Federal,  page  88, 
the  Circuit  Court  of  Appeals  for  the  Sixth  Circuit  held 
that  an  indictment  under  this  section,  which  charged  that 
the  defendants  conspired  to  injure,  etc.,  certain  male 
citizens  of  Kentucky  in  the  free  exercise  and  enjoyment 
of  a  right  and  privilege  secured  to  them,  was  bad,  as 
indefinite,  in  that  it  failed  to  state  what  particular  right 
and  privilege  it  meant.  The  opinion,  in  discussing  the 
demurrer,  leaves  us  under  the  impression  that  the  prose- 
cution would  have  sustained,  (it  being  for  a  conspiracy 
to  prevent  certain  persons  from  voting),  had  the  indict- 
ment been  sufficient. 

The  Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  in 
Haynes  vs.  United  States,  101  Federal,  page  819,  held  in 
substance,  that  an  indictment  against  certain  persons  for 


430  Federal  Criminal  Law  Procedure. 

conspiring  to  prevent  a  citizen  of  the  United  States  from 
the  free  exercise  and  enjoyment  of  a  certain  right  and 
privilege  secured  to  him  by  the  laws  of  the  United  States, 
(that  is  to  say,  the  right  to  then  and  there  peaceably 
enter  upon,  prospect  for  minerals,  initiate,  locate,  estab- 
lish, and  perfect  a  mining  claim  upon  the  public  lands 
of  the  United  States  under  the  public  land  of  the  United 
States,  etc.),  was  good,  and  that  a  prosecution  therefor 
could  be  sustained  under  this  section. 

In  Davis  vs.  United  States,  107  Federal,  753,  the  Circuit 
Court  of  Appeals  for  the  Sixth  Circuit  affirmed  a  convic- 
tion had  upon  an  indictment  charging  a  conspiracy  under 
this  section  to  prevent  the  arrest  of  certain  parties  who 
were  sought  by  the  United  States  Deputy  Marshals  for 
alleged  violations  of  the  Federal  Revenue  Laws,  the  overt 
act  charged  therein  being  the  murder  of  one  of  the  Fed- 
eral officials. 

In  Karem  vs.  United  States,  121  Federal,  250,  the  Cir- 
cuit Court  of  Appeals  for  the  Fifth  Circuit,  in  a  prosecu- 
tion under  this  section,  held  that  the  power  of  Congress, 
to  legislate  on  the  subject  of  voting  at  purely  State  elec- 
tions, is  entirely  dependent  upon  the  Fifteenth  Constitu- 
tional Amendment,  and  is  limited  by  such  amendment  to 
the  enactment  of  appropriate  legislation  to  prevent  the 
right  of  a  citizen  of  the  United  States  to  vote,  from  being- 
denied  or  abridged  by  a  State,  on  account  of  race,  color, 
or  condition;  and  since  the  amendment  is  in  terms  ad- 
dressed to  action  by  the  United  States  or  a  State,  ap- 
propriate legislation  for  its  enforcement  must  also  be 
addressed  to  State  action,  and  not  to  the  action  of  in- 
dividuals. In  that  case,  the  Court  held,  in  substance,  that 
a  penal  act  of  Congress  cannot  be  sustained,  as  an  exer- 
cise of  the  power  given  by  a  Constitutional  provision,  to 
enact  appropriate  legislation  for  its  enforcement,  where 
the  Act  is  broader  in  its  terms  than  the  Constitutional 
provision,  and  the  language  used  covers  wrongful  acts 
without  as  well  as  within,  the  same.  In  that  particular 
case,  the  defendant  had  been  convicted  under  an  indict- 
ment framed  under  this  section,  which  charged  in  sub- 
stance that  he  and  others  had  conspired,  etc.,  to  intimidate 
certain  persons  of  color,  who  were  citizens  of  the  United 


Offenses  Against  Franchise,  etc.  431 

States  and  of  the  State  of  Kentucky,  qualified  voters,  etc., 
from  exercising  a  right  and  privilege  secured  by  them  by 
the  Constitution  and  laws  of  the  United  States,  to  wit, 
the  right  and  privilege  to  vote  at  the  election  ( setting 
out  the  election,  etc.)  such  election  being  for  State  and 
municipal  officers  of  Kentucky  only.  The  defendants 
were  convicted.  The  contention  of  the  Government  be- 
fore the  Circuit  Court  of  Appeals  was,  that  Sections  2004 
and  5508  of  the  old  Statutes,  guaranteed  the  individual 
the  right  to  vote  at  a  State  election,  and  that  the  Federal 
Government  protected  him  in  his  right,  even  against  the 
acts  of  individuals.  The  Fifteenth  Amendment  to  the 
Constitution  reads  as  follows: 

"Sec.  1.  The  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States,  or  by  any  State,  on 
account  of  race,  color,  or  previous  condition  of  servitude. 

"Section  2.  The  Congress  shall  have  the  power  to  enforce  this 
Article  by  appropriate  legislation." 

The  Courts  had  already  decided  that  this  Constitution- 
al Amendment  did  not  confer  the  right  of  suffrage  upon 
anyone,  United  States  vs.  Reeves,  92  U.  S.,  214,  23  Law 
Ed.,  563;  United  States  vs.  Cruikshank,  92  U.  S.,  542; 
23  Law  Ed.,  588.  The  right  to  vote  is  conferred  by  the 
State  laws.  The  Amendment,  therefore,  merely  guaran- 
teed that  no  State  should  interfere  with  the  right  to  vote, 
by  legislation  based  upon  a  distinction  as  to  race,  color, 
or  previous  condition  of  servitude.  "State  action,  there- 
fore, and  not  individual  action,"  said  the  Court,  "is  the 
subject  of  this  Article.  The  right  to  vote  in  purely  State 
elections  being,  as  we  have  seen,  a  right  granted  by,  and 
dependent  upon,  the  law  of  the  State,  is,  therefore,  a  right 
which  can  only  be  denied  or  abridged  by  the  State.  The 
Amendment  is,  therefore,  in  terms  addressed  to  State 
action  ....  With  the  exception  of  the  first  clause  of  the 
first  section  of  the  Fourteenth  Amendment,  that  section 
is,  like  the  Fifteenth  Amendment,  addressed  broadly  to 
the  State.  The  other  clauses  of  that  Section,  reading  as 
follows: 

"No  State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States;    nor  shall 


432  Federal  Criminal  Law  Procedure. 

any  State  deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law;  nor  deny  to  any  person,  within  its  jurisdiction, 
the  equal  protection  of  thhe  laws," 

have  been  authoritatively  construed  as  addressed  to  State 
action  in  some  form,  and  not  to  mere  individual  conduct. 
The  Slaughter  house  case,  10  Wallace,  36,  21  Law  Ed.,  394; 
ex  parte  Virginia,  100  U.  S.,  339,  25  Law  Ed.,  676,  the 
Cruikshank  case,  cited  supra;  United  States  vs.  Harris, 
106  U.  S.,  629,  27  Law  Ed.,  290;  Virginia  vs.  Eives,  100 
U.  S.,  313,  25  Law  Ed.,  667;  Civil  Rights  case,  109  U.  S., 
3,  37  Law  Ed.,  835;  Chicago,  etc.  Railroad  vs.  Chicago, 
166  U.  S.,  226,  41  Law  Ed.,  979."  Of  course,  if  the  in- 
dividual acts  as  an  instrument  or  agency  of  the  State, 
and  presumes  to  act  by  the  authority  of  the  State,  then 
this  section  would  be  operative.  Same  authorities.  And 
the  Court  reversed  the  conviction,  and  sustained  the 
demurrer. 

§  247a.  Indiana  Election  Case. — U.  S.  vs.  Aczel  et  al. 
219  Federal,  917.  Right  to  vote  for  United  States  rep- 
resentatives, Felix  vs.  U.  S.,  186  Federal,  685,  which  also 
gives  form  of  indictment.  U.  S.  vs.  Stone,  197  Federal, 
483.  A  ballot  difficult  to  understand  and  purposely  made 
so  in  Congressional  elections  is  a  violation  of  this  statute. 
U.  S.  vs.  Stone,  188  Federal,  836. 

Sec.  247  b.  Illustrative  Cases  Under  Foregoing  Sec- 
tion. 

Sec.  19,  quoted  above,  does  not  prohibit  kidnapping; 
and  does  not  punish  for  deporting  from  a  state,  U.  S.  vs. 
Wheeler,  254  F.  611. 

Nor  does  it  apply  for  bribery  of  voters,  U.  S.  vs.  Bath- 
gart,  U.  S.  Sup.  Ct.  Mar.  1918;  also  U.  S.  vs.  Gradwell, 
U.  S.  Sup.  Ct.  Apr.  1917. 

The  intent  is  most  material  under  this  section,  Buch- 
anan vs.  U.  S.,  233  F.  257. 

The  section  cannot  be  violated  by  "ordering"  etc.,  U. 
S.  vs.  Wilcox,  243  F.  993  and  U.  S.  vs.  Welch,  243  F.  996. 

For  form  of  indictment  see  Montova  vs.  U.  S.,  262  F. 
759. 

It  is  a  violation  to  prevent  colored  persons  from  voting, 
Guinn  vs.  U.  S.,  228  F.  104. 


Offenses  Against  Franchise,  etc.  433 

One  has  the  right  to  vote  for  members  of  congress,  etc., 
Aczel  vs.  U.  S.,  232  F.  652. 

Personal  rights  and  not  general  rights  are  safeguarded 
and  an  indictment  which  does  not  recognize  this  distinc- 
tion is  invalid,  Chavez  vs.  U.  S.,  261  F.  174. 

The  protection  of  this  amendment  does  not  extend  to 
primaries,  U.  S.  vs.  0 'Toole,  236  F.  993. 

§  248.  Right  to  Labor. — District  Judge  Trieber,  in 
United  States  vs.  Morris,  125  Federal,  322,  in  overruling 
a  demurrer  to  an  indictment,  found  under  this  section, 
which  charged  a  conspiracy,  etc.,  to  prevent  negro  citi- 
zens from  exercising  the  right  to  lease  and  cultivate  land, 
because  they  were  negroes,  etc.,  held  that  Congress  has 
the  power,  under  the  Thirteenth  Constitutional  Amend- 
ment, to  protect  citizens  of  the  United  States  in  the  en- 
joyment of  those  rights  which  are  fundamental  and  belong 
to  every  citizen,  if  the  depredation  of  those  rights  is 
solely  because  of  race  or  color.  In  his  opinion,  Judge 
Trieber  follows  the  distinction  made  by  Justice  Bradley 
in  the  Civil  Eights  Cases,  109  U.  S.,  3,  27  Law  Ed.,  835, 
in  considering  the  Thirteenth,  Fourteenth  and  Fifteenth 
Amendments  to  the  Constitution.  By  the  wording  of  the 
Fourteenth  and  Fifteenth  Amendments,  encroachments 
by  State  authority  alone  are  mentioned;  but  the  Thir- 
teenth Amendment  includes  everybody  within  the  juris- 
diction of  the  national  Government.  That  Amendment 
provides  that  neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction.  The 
abolition  of  slavery,  said  Mr.  Justice  Field  in  the  Slaugh- 
ter-house case,  and  involuntary  servitude,  was  intended 
to  make  everyone  born  in  this  country  a  free  man ;  and 
as  such,  to  give  him  the  right  to  pursue  the  ordinary 
avocations  of  life,  without  other  restraint  than  such  as 
affects  all  others,  and  to  enjoy  equally  with  them  the 
fruits  of  his  labor.  The  right  to  lease  land,  said  Judge 
Trieber,  and  to  accept  employment  as  a  laborer  for  hire, 
are  fundamental  rights,  inherent  in  every  free  citizen, 
and  a  conspiracy  to  prevent  the  negro  from  exercising 
these  rights,  because  he  is  a  negro,  is  a  conspiracy  to 

28 


434  Federal  Criminal  Law  Procedure. 

deprive  him  of  the  privilege  secured  by  the  Constitution 
and  laws  of  the  United  States,  within  the  meaning  of  the 
Section  5508. 

The  Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  iu 
Smith  vs.  United  States,  157  Federal,  721,  affirmed  a  judg- 
ment of  conviction  had  upon  an  indictment  found  under 
the  section  now  being  considered,  for  conspiring,  etc.,  to 
effect  by  arresting,  imprisoning,  guarding,  and  compelling 
by  threats  and  intimidation,  a  certain  negro  to  work 
against  his  will.  This  prosecution  was  also  predicated 
upon  the  Thirteenth  Constitutional  Amendment.  The 
evidence  in  this  case  showed  that  one  of  the  defendants 
went  to  Memphis,  Tennessee,  and  there  hired  fifteen  or 
more  negroes  to  go  with  him  to  his  place  in  Missouri,  to 
work  in  a  mill,  promising  liberal  wages.  On  their  arrival 
in  the  night,  they  were  met  at  the  station  by  another  of 
the  defendants  with  hacks  and  taken  to  a  farm  twelve 
miles  distant,  where  they  were  searched  for  weapons,  and 
then  placed  in  a  cabin  under  the  guard  of  others  armed 
with  repeating  rifles  and  revolvers.  They  were  kept  un- 
der such  guards  night  and  day,  and  worked  on  the  farm 
in  clearing  and  ditching,  few,  if  any,  receiving  the  prom- 
ised wage.    All  of  the  defendants  were  convicted. 

§  249.  Other  Illustrations. — In  United  States  vs. 
Davis,  103  Federal,  458,  Judge  Hammond  overruled  a  mo- 
tion for  new  trial,  and  assessed  the  full  penalty  of  the 
statute  against  a  defendant  who  was  indicted  for  violat- 
ing this  section,  the  specific  conspiracy  being  to  injure 
and  intimidate,  etc.,  a  United  States  Marshal  and  his 
posse,  and  to  deprive  them  of  their  Constitutional  right 
to  arrest  him  on  legal  process;  as  a  result  of  which  con- 
spiracy the  Deputy  Marshal  was  killed. 

The  Supreme  Court  of  the  United  States,  in  United 
States  vs.  Mason,  213  U.  S.,  page  115,  passed  technically 
upon  a  similar  prosecution  against  certain  parties  who 
conspired  to  intimidate,  and  finally  killed,  an  agent  of 
the  Department  of  Justice  of  the  United  States;  upon  the 
trial  of  whom  the  defense  was  raised  that  they  had  been 
acquitted  in  the  State  Court  for  murdering  the  identical 
person;   and  the  Supreme  Court  of  the  United  States,  in 


Offenses  Against  Franchise,  etc.  435 

that  case,  says  that  inasmuch  as  the  State  Court  had 
acquitted  for  murder  of  the  identical  person  alleged  as 
the  overt  act  for  the  Federal  crime,  there  could  be  no 
Federal  offense.  In  other  words,  "the  language  of  Sec- 
tion 5509  is  entirely  satisfied,  and  the  ends  of  justice  met, 
if  the  statute  is  construed  as  not  embracing,  nor  intended 
to  embrace,  any  felony  or  misdemeanor  against  the  State, 
of  which,  prior  to  the  trial  in  the  Federal  Court  of  the 
Federal  offense  charged,  the  defendants  had  been  law- 
fully acquitted  of  the  alleged  State  offense,  by  a  State 
Court  having  full  jurisdiction  in  the  premises.  This  in- 
terpretation recognizes  the  power  of  the  State,  by  its  own 
tribunals,  to  try  offenses  against  its  laws,  and  to  acquit 
or  punish  the  alleged  offender,  as  the  facts  may  justify. 
This  construction,"  continued  that  Court,  "will  not  pre- 
vent the  trial  of  the  defendants  upon  the  charge  of  con- 
spiracy, and  their  punishment,  if  guilty,  according  to 
5508;  namely,  by  a  fine  of  not  exceeding  five  thousand 
dollars  and  imprisonment  not  more  than  ten  years.  The 
only  result  of  the  views  we  have  expressed  is  that  in  the 
trial  of  this  case  in  the  Federal  Court,  5509  cannot  be  ap- 
plied, because  it  has  been  judicially  ascertained  and  de- 
termined by  a  tribunal  of  competent  jurisdiction — the 
only  one  that  could  finally  determine  the  question — that 
the  defendants  did  not  murder  Walker.  The  Federal 
Court  may,  therefore,  proceed  as  indicated  in  5508,  with- 
out reference  to  5509." 

Morris  Case,  Hodges  Case,  Riggins  Case,  and  Powell 
Case. — We  have  discussed  above  Judge  Trieber's  opinion 
in  125  Federal,  322.  The  Supreme  Court  of  the  United 
States,  in  Hodges  vs.  United  States,  27  Supreme  Court,  6; 
51  Law  Ed.,  page  65;  203  II.  S.,  page  1,  which  was  a  case 
from  the  Eastern  District  of  Arkansas,  where  the  defend- 
ants were  convicted  under  this  section  for  conspiring, 
etc.,  to  compel  negro  citizens,  by  force  and  intimidation, 
to  desist  from  performing  their  contracts  of  employment, 
reversed  and  dismissed  the  prosecution;  the  reasoning  of 
the  Court  being  in  direct  conflict  with  the  reasoning  of 
Judge  Trieber  in  the  Morris  case,  cited  supra.  The  opin- 
ion of  the  Court,  by  Judge  Brewer  suggests  that  prior  to 


436  Federal  Criminal  Law  Procedure. 

the  post-bellum  Amendments  to  the  Constitution,  the  na- 
tional Government  had  no  jurisdiction  over  a  wrong  like 
that  charged  in  this  indictment.  The  Fourteenth  and  Fif- 
teenth Amendments  do  not  justify  the  legislation,  (that 
is,  Section  5508),  for  they,  as  have  been  repeatedly  held, 
are  restrictions  upon  State  action.  Unless,  therefore, 
said  the  Court,  the  Thirteenth  Amendment  vests  in  the 
nation  the  jurisdiction  claimed,  the  remedy  must  be 
sought  through  State  action,  and  in  State  tribunals,  sub- 
ject to  the  supervision  of  this  Court,  by  writ  of  error,  in 
proper  cases.  The  things  denounced  by  the  Thirteenth 
Amendment  are  slavery  and  involuntary  servitude,  and 
Congress  is  given  power  to  enforce  that  denunciation. 
While  the  inciting  cause  of  the  Amendment  was  the 
emancipation  of  the  colored  race,  yet  it  is  not  an  attempt 
to  commit  that  race  to  the  care  of  the  nation.  It  is  the 
denunciation  of  the  condition,  and  not  a  declaration  of 
favor  of  a  particular  people.  It  reaches  every  race  and 
every  individual;  and  if  in  any  respect  it  commits  one 
race  to  the  nation,  it  commits  every  race  and  every  in- 
dividual thereof.  Slavery  or  involuntary  servitude  of 
the  Chinese,  of  the  Italian,  of  the  Anglo  Saxon,  are  as 
much  within  its  compass  as  slavery  or  involuntary  servi- 
tude of  the  African.  It  is  no  answer  to  say  that  one  of 
the  indicia  of  the  existence  of  slavery  is  the  existence  of 
the  disability  to  make  or  perform  contracts.  The  Court 
continues: 

"At  the  close  of  the  Civil  War,  when  the  problem  of  the  eman- 
cipated slaves  was  before  the  nation,  it  might  have  left  them  in 
a  condition  of  aliens;  or  established  them  as  wards  of  the  Govern- 
ment, like  the  Indian  tribes,  and  thus  retained  jurisdiction  for  the 
nation  over  them;  or  it  might,  as  it  did,  give  them  citizenship.  It 
chose  the  latter.  By  the  Fourteenth  Amendment,  it  made  citizens 
of  all  born  within  the  limits  of  the  United  States,  and  subject  to  its 
jurisdiction.  By  the  Fifteenth,  it  prohibited  any  State  from  denying 
the  right  of  suffrage,  on  account  of  color,  race,  or  previous  condition 
of  servitude;  and  by  the  Thirteenth,  it  forbade  slavery  or  involun- 
tary servitude  anywhere  within  the  limits  of  the  land  ....  Congress 
gave  them  citizenship,  doubtless  believing  that  thereby,  in  the  long- 
run,  their  best  interests  would  be  subserved,  they  taking  their  chances 
with  other  citizens  in  the  States  where  they  should  make  their  homes. 
For  these  reasons,  we  think  that  the  United  States  Court  had  no 
jurisdiction  of  the  wrong  charged  in  the  indictment." 


Offenses  Against  Franchise,  etc.  437 

District  Judge  Jones,  in  United  States  vs.  Powell,  151 
Federal,  648,  follows  the  Hodges  case,  and  sustained  a  de- 
murrer to  an  indictment  which  charged  the  defendant, 
with  one  Riggins,  ex  parte  Riggins,  134  Federal,  404; 
Riggins  vs.  United  States,  199  U.  S.,  546,  50  Law  Ed., 
303,  with  conspiring  to  injure,  etc.,  a  negro  citizen  in  the 
enjoyment  of  certain  rights,  to  wit,  by  depriving  him 
of  the  right  of  trial,  etc.,  by  taking  him  from  the  sheriff, 
who  had  him  in  custody,  and  mobbing  him.  Judge  Jones, 
in  the  Riggins  case,  134  Federal,  404,  decided  the  ques- 
tion on  demurrer  differently  from  the  way  he  decided  in 
the  Powell  case;  but  between  the  time  of  the  rendition 
of  the  Riggins  opinion  and  the  rendition  of  the  Powell 
opinion,  the  Supreme  Court  had  spoken  in  the  Hodges 
case,  cited  supra. 

Voting. — In  United  States  vs.  Lackey,  District  Judge 
Evans  overruled  demurrers  to  an  indictment  which  was 
brought  under  this  section  for  conspiring  to  intimidate 
and  prevent  negro  citizens  from  exercising  the  right  to 
vote;  and  he  j)laced  his  decision  upon  the  guarantee  of 
the  Fifteenth  Amendment. 

The  right  to  vote  for  a  United  States  representative  is 
secured  by  the  United  States  constitution  and  is  within 
the  statute  under  discussion.  Felix  vs.  U.  S.,  186  Federal, 
685.  A  conspiracy  to  deprive  colored  voters  of  their  right 
to  vote  for  a  member  of  Congress.  U.  S.  vs.  Stone,  197 
Federal,  483.  A  conspiracy  to  deprive  one  of  his  right  to 
vote  at  a  Congressional  election  is  "injuring"  him  within 
the  meaning  of  the  statute.  U.  S.  vs.  Stone,  188  Federal, 
836,  which  is  the  same  case  as  197  Federal  cited  above 
except  that  in  the  188th  report  the  Court  is  overruling 
the  demurrer  to  the  indictment  and  in  the  197th  the 
Court  is  imposing  the  punishment. 

In  the  Indiana  case,  United  States  vs.  Aczel  et  al.,  219 
Federal,  917,  the  Court  held  on  demurrer  that  under  sec- 
tion 2  of  Article  1  of  the  Constitution  providing  that  the 
House  of  Representatives  shall  be  composed  of  members 
chosen  by  the  people  of  the  several  states  and  the  electors 
in  each  state  shall  have  the  qualifications  of  the  electors 
of  the  most  numerous  branch  of  the  State  Legislature, 


438 .  Federal  Criminal  Law  Procedure. 

and  Constitutional  Amendment  17  making  similar  pro- 
visions for  United  States  senators,  and  the  Act  of  June  4, 
1914,  38  Stats.  384,  providing  for  the  election  of  United 
States  senators  by  direct  vote  of  the  people,  the  election 
to  be  conducted  as  near  as  may  be  in  accordance  with 
the  laws  of  the  state  regulating  the  nomination  and  elec- 
tion of  representatives,  the  right  to  vote  for  representa- 
tives in  Congress  and  United  States  senators,  and  to 
serve  as  members  of  the  election  boards  where  such  rep- 
resentatives or  senator  is  to  be  elected,  are  rights  secured 
by  the  Constitution  and  laws  of  the  United  States  within 
the  provision  of  Section  19  of  the  Criminal  Code. 

Right  to  Inform  of  Violations  of  the  Law. — It  is  the 
right  and  privilege  of  one,  in  return  for  the  protection 
enjoyed  under  the  Constitution  and  laws  of  the  United 
States,  to  aid  in  the  execution  of  the  laws,  by  giving 
information  to  the  proper  authorities  of  violations  of 
those  laws.  Conspiracy  to  injure  one  who  had  given  in- 
formation about  violations  of  the  Revenue  Laws,  is  an 
offense  under  this  Section.  1  Federal  Stat.,  803;  Motes 
vs.  United  States,  178  U.  S.,  458;  in  re  Quarrels,  158  U. 
S.,  532.  A  conspiracy  to  intimidate  a  citizen  of  African 
descent  in  the  exercise  of  his  right  to  vote  for  a  Member 
of  Congress  and  in  the  execution  of  that  conspiracy,  beat- 
ing and  maltreating  him,  is  an  offense  under  Section 
5520.  First  Federal  Statutes  Annotated,  803;  ex  parte 
Yarbrough,  110  U.  S.,  651;  U.  S.  vs.  Butler,  1  Hughes,  457. 

Right  of  One  in  Custody  to  Protection. — The  leading 
case  upon  this  question  is  the  case  of  Logan  vs.  United 
States,  144  U.  S.,  263,  where  it  was  decided  that  a  person 
in  the  custody  of  a  United  States  Marshal,  has  the  right 
to  be  protected  against  unlawful  interference;  and  the 
conspiracy  to  deprive  him  of  such  right  is  an  offense 
under  this  section. 

Other  Cases. — Cases  not  cited  in  the  above  discussion, 
but  which  bear  upon  various  phases  of  the  statute  under 
consideration  are  the  following:  Strauder  vs.  West  Vir- 
ginia, 100  U.  S.,  303;  ex  parte  Virginia,  100  U.  S.,  339; 
ex  parte  Siebold,  100  U.  S.,  371;  ex  parte  Clark,  100  U. 
S.,  399;  Neal  vs.  Delaware,  103  U.  S.,  370;  United  States 
vs.  Harris,  106  U.  S.,  629;   Civil  Rights  cases,  109  U.  S., 


Offenses  Against  Franchise,  etc.  439 

17;  Baldwin  vs.  Frank,  120  U.  S.,  678;  in  re  Coy,  127 
U.  S.,  731;  in  re  Neagel,  135  U.  S.,  1;  in  re  Lancaster,  137 
U.  S.,  393;  Brown  vs.  United  States,  150  U.  S.,  93;  in  re 
Quarrels,  158  U.  S.,  532;  Rakes  vs.  U.  S.,  212  U.  S.,  55; 
Le  Grand  vs.  U.  S.,  12  Federal,  577;  in  re  Baldwin,  27 
Federal,  187;  U.  S.,  vs.  Lancaster,  44  Federal,  885;  U. 
S.  vs.  Sanges,  48  Federal,  78;  U.  S.  vs.  Patrick,  53  Fed- 
eral, 356;  also  54  Federal,  338. 

It  may,  therefore,  be  stated  with  comparative  satisfac- 
tion and  confidence  in  the  ability  to  demonstrate  its 
correctness  from  the  above  decisions,  that  the  Federal 
Government  has  no  jurisdiction  to  prosecute  under  these 
statutes  for  offenses  which  interfere  with  the  privileges 
and  immunities  of  citizens  of  the  several  States.  The 
difficulty  seems  to  be  to  determine  just  what  are  such 
privileges  and  immunities.  "They  are,"  in  the  language 
of  Mr.  Justice  Washington,  which  is  approved  in  the 
Slaughter-house  Cases,  cited  supra,  "such  privileges  and 
immunities  as  are  fundamental;  which  belong  of  right 
to  the  citizens  of  all  free  Governments,  and  which  have, 
at  all  times,  been  enjoyed  by  citizens  of  the  several  States 
which  compose  this  Union,  from  the  time  of  their  be- 
coming free,  independent,  and  sovereign.  What  these 
fundamental  principles  are,  it  would  be  more  tedious  than 
difficult  to  enumerate.  They  may  all,  however,  be  com- 
prehended under  the  following  general  heads:  protection 
by  the  Government,  with  the  right  to  acquire  and  possess 
property  of  every  kind,  and  to  pursue  and  obtain 
happiness  and  safety,  subject,  nevertheless,  to  such  re- 
straints as  the  Government  may  prescribe  for  the  general 
good  of  the  whole."  On  the  other  hand,  the  Federal 
Government,  under  the  above  statutes,  will  protect  the 
person  in  the  right  to  vote  for  any  Federal  official;  will 
protect  a  person  in  his  right  to  give  information  of  the 
violation  of  Federal  laws;  will  protect  the  Federal  Gov- 
ernment, and  all  of  its  agencies,  persons,  and  entire  of- 
ficialdom; will  protect  the  person  of  any  prisoner  that 
may  be  in  the  hands  of  its  officers;  and  will  protect  its 
officers  in  the  execution  of  any  and  all  of  their  functions ; 
and  will,  in  the  enforcement  of  the  Thirteenth  Amend- 
ment, punish  all  sorts  of  peonage  and  enforced  labor. 


44U  Federal  Criminal  Law  Procedure. 

Any  mob,  however,  or  aggregation  of  private  individ- 
uals that  act  independently  of  a  State  or  Government 
that  attacks  the  negro  race  or  other  races,  commit  no 
Federaly  offense.  Such  offenders  are  to  be  punished  by 
the  laws  of  the  State. 

§  250.  Other  Crimes  Committed  While  Violating  the 
Preceding  Section. — Section  5509  of  the  old  1878  Statutes 
reads  as  follows: 

"Sec.  5509.  If  in  the  act  of  violating  any  provision  in  either  of 
the  two  preceding  sections  any  other  felony  or  misdemeanor  be  com- 
mitted, the  offender  shall  be  punished  for  the  same  with  such  punish- 
ment as  is  attached  to  such  felony  or  misdemeanor  by  the  laws  of 

the  State  in  which  the  offense  is  committed." 

4 

The  section  does  not  embrace  any  felony  or  misde- 
meanor against  a  State,  of  which,  prior  to  the  trial  in  the 
Federal  Court  of  the  Federal  offense,  the  defendants  had 
been  lawfully  acquitted  by  a  State  Court  having  full 
jurisdictoin.  As  the  Federal  Court  accepted  the  judgment 
of  a  State  Court,  construing  the  meaning  and  scope  of 
the  State  enactment  whether  civil  or  criminal,  it  should 
also  accept  the  judgment  of  a  State  Court  based  on  a 
verdict  of  acquittal  of  a  crime  against  the  State.  United 
States  vs.  Mason,  213  U.  S.,  115. 

§  251.  Depriving  Persons  of  Civil  Rights  Under  Color 
of  State  Law. — Section  5510  of  the  old  statutes  becomes 
Section  20  of  the  new  Code,  which  is  in  the  following 
words: 

"Sec.  20.  Whoever,  under  color  of  any  law,  statute,  ordinance, 
regulation,  or  custom,  wilfully  subjects,  or  causes  to  be  subjected,  any 
inhabitant  of  any  State,  Territory,  or  District  to  the  deprivation  of 
any  rights,  privileges,  or  immunities  secured  or  protected  by  the 
Constitution  and  laws  of  the  United  States,  or  to  different  punish- 
ments, pains,  or  penalties,  on  account  of  such  inhabitant  being  an 
alien,  or  by  reason  of  his  color,  or  race,  than  are  prescribed  for  the 
punishment  of  citizens,  shall  be  fined  not  more  than  one  thousand 
dollars,  or  imprisoned  not  more  than  one  year,  or  both." 

The  Court,  in  charging  the  jury  in  United  States  vs. 
Buntin,  10  Federal,  730,  which  was  a  prosecution  under 
this  section,  said,  "He,  the  child,  must  have  been  ex- 
cluded under  some  color  of  law,  statute,  ordinance,  reg- 


Offenses  Against  Franchise,  etc.  441 

ulation,  or  custom  of  the  State,  and  on  account  of  his 
color."    See  also  Civil  Rights  Cases,  109  U.  S.,  16. 

§  252.  Conspiracy  to  Prevent  Person  from  Holding 
Office  or  Officer  from  Performing  His  Duty  Under  United 
States,  Etc. — Section  5518  of  the  old  Statutes  becomes 
Section  21  of  the  new  Code,  as  follows: 

"Sec.  21.  If  two  or  more  persons  in  any  State,  Territory,  or  Dis- 
trict conspire  to  prevent,  by  force,  intimidation,  or  threat,  any  person 
from  accepting  or  holding  any  office,  trust,  or  place  of  confidence  un- 
der the  United  States,  or  from  discharging  any  duties  thereof;  or 
to  induce  by  like  means  any  officer  of  the  United  States  to  leave  any 
State,  Territory,  District,  or  place,  where  his  duties  as  an  officer 
are  required  to  be  performed,  or  to  injure  him  in  his  person  or  prop- 
erty on  account  of  his  lawful  discharge  of  the  duties  of  his  office, 
or  while  engaged  in  the  lawful  discharge  thereof,  or  to  injure  his 
property  so  as  to  molest,  interrupt,  hinder,  or  impede  him  in  the 
discharge  of  his  official  duties,  each  of  such  persons  shall  be  fined 
not  more  than  five  thousand  dollars,  or  imprisoned  not  more  than 
six  years,  or  both." 

§  253.     Unlawful  Presence  of  Troops  at  Elections.- 

Section  22  of  the  new  Code  takes  the  place  of  old  Section 
5528,  and  is  in  the  following  words: 

"Sec.  22.  Every  officer  of  the  Army  or  Navy,  or  other  person  in 
the  civil,  military,  or  naval  service  of  the  United  States,  who  orders, 
brings,  keeps,  or  has  under  his  authority  or  control  any  troops  or 
armed  men  at  any  place  where  a  general  or  special  election  is  held 
in  any  State,  unless  such  force  be  necessary  to  repel  armed  enemies 
of  the  United  States,  shall  be  fined  not  more  than  five  thousand  dollars 
and  imprisoned  not  more  than  five  years." 

§  254.  Intimidation  of  Voters  by  Officers,  Etc.,  of 
Army  and  Navy. — Section  23  of  the  new  Code  displaces 
old  Section  5529,  and  is  in  the  following  words: 

"Sec.  23.  Every  officer  or  other  person  in  the  military  or  naval 
service  of  the  United  States  who,  by  force,  threat,  intimidation,  order, 
advice,  or  otherwise,  prevents,  or  attempts  to  prevent,  any  qualified 
voter  of  any  State  from  freely  exercising  the  right  of  suffrage  at  any 
general  or  special  election  in  such  State  shall  be  fined  not  more  than 
five  thousand  dollars  and  imprisoned  not  more  than  five  years." 

§  255.  Officers  of  Army  or  Navy  Prescribing  Quali- 
fications of  Voters. — Section  24  of  the  new  Code  takes  the 
place  of  old  Statute  5530,  and  is  as  follows: 

"Sec.  24.  Every  officer  of  the  Army  or  Navy  who  prescribes  or  fixes, 
or  attempts   to  prescribe   or   fix,   whether   by   proclamation,   order,   or 


442  Federal  Criminal  Law  Procedure. 

otherwise,   the   qualifications   of   voters   at   any   election    in    any    State 
shall  be  punished  as  provided  in  the  preceding  section." 

§  256.  Officers,  Etc.,  of  Army  or  Navy  Interfering 
with  Officers  of  Election,  Etc. — Section  25  of  the  new 
Code  takes  the  place  of  Section  5531,  and  is  as  follows: 

"Sec.  25.  Every  officer  or  other  person  in  the  military  or  naval 
service  of  the  United  States  who,  by  force,  threat,  intimidation,  order, 
or  otherwise,  compels,  or  attempts  to  compel,  any  officer  holding  an 
election  in  any  State  to  receive  a  vote  from  a  person  not  legally 
qualified  to  vote,  or  who  imposes,  or  attempts  to  impose,  any  regula- 
tions for  conducting  any  general  or  special  election  in  a  State  different 
from  those  prescribed  by  law,  or  who  interferes  in  any  manner  with 
any  officer  of  an  election  in  the  discharge  of  his  duty,  shall  be  punish- 
ed as  provided  in  section  twenty-three." 

§  257.  Persons  Disqualified  from  Holding  Office; 
When  Soldiers,  Etc.,  May  Vote.— Old  Section  5532  be- 
comes Section  26  of  the  new  Code,  as  follows: 

"Sec.  26.  Every  person  convicted  of  any  offense  defined  in  the 
four  preceding  sections  shall,  in  addition  to  the  punishment  therein 
prescribed,  be  disqualified  from  holding  any  office  of  honor,  profit,  or 
trust  under  the  United  States;  but  nothing  therein  shall  be  construed 
to  prevent  any  officer,  soldier,  sailor,  or  marine  from  exercising  the 
right  of  suffrage  in  any  election  district  to  which  he  may  belong,  if 
otherwise  qualified  according  to  the  laws  of  the  State  in  which  he  of- 
fers to  vote." 

Sec.  257  a.     Primary  Elections. 

Primary  elections  are  not  within  the  protection  of  the 
federal  statute  as  framed  at  the  time  of  this  writing,  U. 
S.  vs.  0 'Toole,  236  F.  993. 

Primary  elections  are  not  under  the  provisions  of  the 
corrupt  practice  act,  of  June  25, 1910,  as  amended  August 
19, 1911,  see  Gradwell  vs.  U.  S.,  243  U.  S.,  476,  which  also 
gives  form  of  indictment. 

In  the  case  of  Newberry  vs.  U.  S.,  41  Sup.  Ct.  Rep.  469, 
it  was  held  that  the  corrupt  practice  act,  as  applied  to 
party  primaries,  was  not  within  the  power  conferred  on 
congress  by  the  constitution  in  Art.  1,  Sec.  4,  to  regulate 
the  manner  of  holding  elections,  or  within  the  power 
conferred  by  Art.  1,  Sec.  8,  to  make  all  laws  necessary 
and  proper  for  carrying  into  effect  the  powers  granted 
by  the  constitution. 


CHAPTER  XII. 

OFFENSES    AGAINST    FOREIGN    AND    INTERSTATE    COMMERCE 

§  258.     Dynamite,  Etc..  not  to  be  Carried  on  Vessels  or  Vehicles  Carry- 
ing Passengers  for  Hire. 
258a.  Explosives. 

259.  Interstate    Commerce    Commission    to    Make    Regulations    for 

Transportation  of  Explosives. 

260.  Liquid    Nitro-Glycerine,    etc.,    Not    to    be    Carried    on    Certain 

Vessels  or  Vehicles. 

261.  Marking  of  Packages  of  Explosives — Deceptive  Marking. 

262.  Death  or  Bodily  Injury  Caused  by  Such  Transportation. 

263.  Importation  and  Transportation  of  Lottery  Tickets,  Etc. 

264.  Interstate    Shipment   of   Intoxicating   Liquors,   Delivery   to   be 

Made  Only  to  Bona  Fide  Consignee. 

265.  Common  Carrier,  Etc.,  not  to  Collect  Purchase  Price  of  Inter- 

state Shipment  of  Intoxicating  Liquors. 
265a.  Decision  Under  Last  Statute. 

266.  Packages  Containing  Intoxicating  Liquors  Shipped  in  Interstate 

Commerce  to  be  Marked  as  Such. 

267.  Importation  of  Certain  Wild  Animals,  Birds,  and  Reptiles  For- 

bidden. 
267a.  Migratory  Game — Birds. 

268.  Transportation  of  Prohibited  Animals. 
268a.  Constitutionality  of  Statute. 

269.  Marking  of  Packages. 

270.  Penalty   for   Violation    of    Preceding   Sections. 

271.  Depositing  Obscene   Books,   Etc.,  with   Common   Carrier. 
271a.  The   Statute    is    Constitutional. 

271b.  Anti-Pass  Law. 

271c.  Theft  of  Goods  in  Interstate  Commerce. 

271c.cc.  Theft  and   Inter-State  Transportation   of  Automobile. 
271d.  Cotton  Future  Contracts. 

271e.  Opium   or  Coco   Leaves,   Their    Salts,   Derivatives   or   Prepara- 
tions. 
271f.  Interstate  Commerce — Regulation  Thereof. 

In  Chapter  IX.  of  the  1910  Code,  there  are  fourteen  sec- 
tions which  are  created  offenses  by  reason  of  the  power 
of  the  general  Government  to  supervise  interstate  and 
international  commerce. 

§  258.  Dynamite,  Etc.,  Not  to  be  Carried  on  Vessels 
or  Vehicles  Carrying  Passengers  for  Hire. — Sections  4278 
and  5353  of  the  old  Statutes  are  shorn  of  their  cumber- 

(443) 


444  Federal  Criminal  Law  Procedure. 

someness  and  broadened  by  new  Section  232,  in  the  fol- 
lowing words: 

"Sec.  232.  It  shall  be  unlawful  to  transport,  carry,  or  convey,  any 
dynamite,  gunpowder,  or  other  explosive,  between  a  place  in  a  foreign 
country  and  a  place  within  or  subject  to  the  jurisdiction  of  the  United 
States,  or  between  a  place  in  any  State,  Territory,  or  District  of  the 
United  States,  or  place  noncontiguous  to  but  subject  to  the  juris- 
diction thereof,  and  a  place  in  any  other  State,  Territory,  or  District 
of  the  United  States,  or  place  noncontiguous  to  but  subject  to  the 
jurisdiction  thereof,  on  any  vessel  or  vehicle  of  any  description  operat- 
ed by  a  common  carrier,  which  vessel  or  vehicle  is  carrying  passengers 
for  hire:  Provided,  That  it  shall  be  lawful  to  transport  on  any  such 
vessel  or  vehicle  small  arms  ammunition  in  any  quantity,  and  such 
fuses,  torpedoes,  rockets,  or  other  signal  devices,  as  may  be  essential 
to  promote  safety  in  operation,  and  properly  packed  and  marked 
samples  of  explosives  for  laboratory  examination,  not  exceeding  a  net 
weight  of  one-half  pound  each,  and  not  exceeding  twenty  samples  at 
one  time  in  a  single  vessel  or  vehicle;  but  such  samples  shall  not  be 
carried  in  any  part  of  a  vessel  or  vehicle  which  is  intended  for  the 
transportation  of  passengers  for  hire:  Provided  further,  That  nothing 
in  this  section  shall  be  construed  to  prevent  the  transportation  of 
military  or  naval  forces  with  their  accompanying  munitions  of  war  on 
passenger   equipment   vessels   or   vehicles." 

The  punishment  for  the  violation  of  this  section  is  de- 
termined in  Section  235,  wherein  Congress  provides,  that, 
"Whoever  shall  knowingly  violate  or  cause  to  be  violated 

any  provision  of  this  section  ....  shall  be  fined  not 

more  than  two  thousand  dollars,  or  imprisoned  not  more 
than  eighteen  months,  or  both." 

§  258a.  Explosives. — Labor  leaders  who  conspired  to 
transport  explosives  in  violation  of  the  above  section 
were  convicted  and  their  sentences  affirmed  in  Ryan  vs. 
U.  S.,  216  Federal,  213. 

Sec.  258  b.     Explosives  Continued. 

Since  the  ground  of  the  offense  of  the  foregoing  statute 
for  the  transportation  of  the  enumerated  explosives  on 
vessels  or  vehicles  operated  by  a  common  carrier,  and 
carrying  passengers  have  held,  it  is  no  excuse  that  a  man 
so  carrying  an  explosive  was  an  officer  of  some  foreign 
country,  Horn  vs.  Mitchell,  232  F.  819. 

By  amendment  of  Mar.  4,  1921,  many  explosives  are 
added  to  those  mentioned  in  the  original  sections  and 


Offenses  Against  Foeeign  &  Interstate  Commerce.  445 

also  adds  the  authority  for  regulation  by  the  interstate 
commerce  commission. 

§  259.  Interstate  Commerce  Commission  to  Make 
Regulations  for  Transportation  of  Explosives. — Old  Sec- 
tions 4279  and  5355  are  amplified  and  added  to,  and  be- 
come Section  233  in  the  New  Code,  authorizing  the  Inter- 
state Commerce  Commission  to  formulate  regulations,  in 
the  following  words: 

"Sec.  233.  The  Interstate  Commerce  Commission  shall  formulate 
regulations  for  the  safe  transportation  of  explosives,  which  shall  be 
binding  upon  all  common  carriers  engaged  in  interstate  or  foreign 
commerce  which  transport  explosives  by  land.  Said  commission,  of 
its  own  motion,  or  upon  application  made  by  any  interested  party,  may 
make  changes  or  modifications  in  such  regulations,  made  desirable  by 
new  information  or  altered  conditions.  Such  regulations  shall  be  in 
accord  with  the  best  known  practicable  means  for  securing  safety  in 
transit,  covering  the  packing,  marking,  loading,  handling  while  in 
transit,  and  the  precautions  necessary  to  determine  whether  the  ma- 
terial when  offered  is  in  proper  condition  to  transport.  Such  regula- 
tions, as  well  as  all  changes  or  modifications  thereof,  shall  take  ef- 
fect ninety  days  after  their  formulation  and  publication  by  said  com- 
mission and  shall  be  in  effect  until  reversed,  set  aside,  or  modified." 

§  260.  Liquid  Nitroglycerine,  Etc.,  Not  to  be  Carried 
on  Certain  Vessels  and  Vehicles. — The  Act  of  May  30, 
1908,  35  Statute  at  Large,  555,  becomes  Section  234  of  the 
new  Code,  as  follows: 

"Sec.  234.  It  shall  be  unlawful  to  transport,  carry,  or  convey,  liquid 
nitroglycerine,  fulminate  in  bulk  or  in  dry  condition,  or  other  like 
explosives,  between  a  place  in  a  foreign  country  and  a  place  within 
or  subject  to  the  jurisdiction  of  the  United  States,  or  between  a  place  in 
one  State,  Territory,  or  District  of  the  United  States,  or  place  non- 
contiguous to  but  subject  to  the  jurisdiction  thereof,  and  a  place  in 
any  other  State,  Territory,  or  District  of  the  United  States,  or  place 
non-contiguous  to  but  subject  to  the  jurisdiction  thereof,  on  any  vessel 
or  vehicle  of  any  description  operated  by  a  common  carrier  in  the 
transportation  of  passengers  or  articles  of  commerce  by  land  or  water." 

This  section  seems  to  prohibit  the  transportation  by 
any  method,  by  any  common  carrier  that  carries  pas- 
sengers or  articles  of  commerce.  It  will  be  noted,  how- 
ever, that  this  section  (234)  and  Section  233,  above  quot- 
ed, and  Section  235,  hereinaftr  set  out,   seem  to  have 


446  Federal  Criminal,  Law  Procedure. 

been  repealed  by  the  schedule  in  Section  341;  and  these 
three  sections  do  not  seem  to  have  been  in  the  bill,  as 
reported  to  Congress  by  the  Committtee  on  Revision,  but 
because  of  uncertainty,  they  are  quoted. 

§  261.  Marking  of  Packages  of  Explosives;  Deceptive 
Marking. — Section  235  of  the  new  Code  reads  as  follows: 

"Sec.  235.  Every  package  containing  explosives  or  other  dangerous 
articles  when  presented  to  a  common  carrier  for  shipment  shall  have 
plainly  marked  on  the  outside  thereof  the  contents  thereof;  and  it 
shall  be  unlawful  for  any  person  to  deliver,  or  cause  to  be  delivered  to 
any  common  carrier  engaged  in  interstate  or  foreign  commerce  by 
land  or  water,  for  interstate  or  foreign  transportation,  or  to  carry 
upon  any  vessel  or  vehicle  engaged  in  interstate  or  foreign  transporta- 
tion, any  explosive,  or  other  dangerous  article,  under  any  false  or  de- 
ceptive marking,  description,  invoice,  shipping  order,  or  other  de- 
claration, or  without  informing  the  agent  of  such  carrier  of  the  true 
character  thereof,  at  or  before  the  time  such  delivery  or  carriage  is 
made.  Whoever  shall  knowingly  violate,  or  cause  to  be  violated,  any 
provision  of  this  section,  or  of  the  three  sections  last  preceding, 
or  any  regulation  made  by  the  Interstate  Commerce  Commission  in 
pursuance  thereof,  shall  be  fined  not  more  than  two  thousand  dollars, 
or  imprisoned  not  more  than  eighteen  months,  or  both." 

It  will  be  borne  in  mind  that  this  section,  as  well  as  234 
and  233,  are  probably  repealed  by  Section  341  of  the  new 
Code  as  presented  by  the  Committee  on  Revision. 

§  262.  Death  or  Bodily  Injury  Caused  by  Such  Trans- 
portation.— Section  5354  of  the  old  statutes  becomes,  with 
some  changes,  Section  236  of  the  new  Code,  as  follows: 

'Sec.  236.  When  the  death  or  bodily  injury  of  any  person  is  caused 
by  the  explosion  of  any  article  named  in  the  four  sections  last  pre- 
ceding, while  the  same  is  being  placed  upon  any  vessel  or  vehicle  to 
ue  transported  in  violation  thereof,  or  while  the  same  is  being  so 
iransported,  or  while  the  same  is  being  removed  from  such  vessel  or 
vehicle,  the  person  knowingly  placing,  or  aiding  or  permitting  the 
placing,  of  such  articles  upon  any  such  vessel  or  vehicle,  to  be  so 
transported,  shall  be  imprisoned  not  more  than  ten  years." 

The  imprisonment  in  the  old  statute  was  for  any  period 
not  less  than  two  years. 

§  263.  Importation  and  Transportation  of  Lottery 
Tickets,  Etc. — The  defects  and  limitations  in  the  Act  of 
March  2,  1895,  28  Statute  at  Large,  963,  Second  Supple- 


Offenses  Against  Foreign  &  Interstate  Commerce.  447 

inent,  435,  are  remedied  by  Section  237  of  the  new  Code, 
which  is  as  follows: 

"Sec.  237.  Whoever  shall  bring  or  cause  to  be  brought  into  the 
United  States  or  any  place  subject  to  the  jurisdiction  thereof,  from  any 
foreign  country,  for  the  purpose  of  disposing  of  the  same,  any  paper, 
certificate,  or  instrument  purporting  to  be  or  to  represent  a  ticket, 
chance,  share,  or  interest  in  or  dependent  upon  the  event  of  a  lottery, 
gift  enterprise,  or  similar  scheme,  offering  prizes  dependent  in  whole 
or  in  part  upon  lot  or  chance,  or  any  advertisement  of,  or  list  of  the 
prizes  drawn  or  awarded  by  means  of,  any  such  lottery,  gift  enterprise, 
or  similar  scheme;  or  shall  therein  knowingly  deposit  or  cause  to  be 
deposited  with  any  express  company  or  other  common  carrier  for  car- 
riage, or  shall  carry,  from  one  State,  Territory,  or  District  of  the 
United  States,  or  place  non-contiguous  to  but  subject  to  the  jurisdiction 
thereof,  to  any  other  State,  Territory,  or  District  of  the  United  States, 
or  place  non-contiguous  to  but  subject  to  the  jurisdiction  thereof,  or 
from  any  place  in  or  subject  to  the  jurisdiction  of  the  United  States 
through  a  foreign  country  to  any  place  in  or  subject  to  the  jurisdiction 
thereof,  or  from  any  place  in  or  subject  to  the  jurisdiction  of  the 
United  States  to  a  foreign  country,  any  paper,  certificate,  or  instru- 
ment purporting  to  be  or  to  represent  a  ticket,  chance,  share,  or  in- 
terest in  or  dependent  upon,  the  event  of  any  such  lottery,  gift  en- 
terprise, or  similar  scheme,  or  any  advertisement  of,  or  list  of  the 
prizes  drawn  or  awarded  by  means  of,  any  such  lottery,  gift  enterprise, 
or  similar  scheme,  or  shall  knowingly  take  or  receive,  or  cause  to  be 
taken  or  received,  any  such  paper,  certificate,  instrument,  advertise- 
ment, or  list  so  brought,  deposited,  or  transported,  shall,  for  the  first 
offense,  be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  two  years,  or  both;  and  for  any  subsequent  offense  shall 
be  imprisoned  not  more  than  two  years." 

This  statute  meets  the  criticisms  leveled  at  the  former 
statute  by  Circuit  Judge  Jenkins,  in  the  95  Federal,  453, 
Champion  vs.  Ames,  and  by  Judge  McDowell,  in  125  Fed- 
eral, 616,  United  States  vs.  Whelpley,  wherein  each  held 
that  the  old  statute  did  not  prevent  or  punish  the  sending 
of  lottery  tickets  from  a  State  to  a  Territory,  etc.,  or 
from  a  Territory  to  a  State;  the  language  being  "from 
one  State  to  another. "  This  new  statute  covers  the  entire 
ground,  and  protects  Territories*,  Provisional  Govern- 
ments, foreign  countries,  States,  and  non-contiguous  ter- 
ritory subject  to  the  jurisdiction  of  the  United  States.  This 
limitation  has  been  held  to  be  Constitutional,  in  France 
vs.  United  States,  164  U.  S.,  676;    Champion  vs.  Ames, 


448  Federal  Criminal  Law  Procedure. 

188  U.  8.,  321;   and  Francis  vs.  United  States,  188  U.  S., 
375. 

In  France  vs.  United  States,  164  U.  S.,  676,  41  Law  Ed., 
595,  the  Supreme  Court  held  that  a  paper  that  contains 
nothing  but  figures  which  relate  to  a  drawing  already 
completed,  is  not  a  paper  certificate  or  instrument  pur- 
porting to  be,  or  representing,  a  ticket,  chance,  share,  or 
interest,  in  a  lottery,  which  the  Act  of  Congress  of  1895, 
Chapter  191,  makes  it  unlawful  to  bring  into  the  United 
States,  or  deposit  in  the  mails,  or  carry  from  one  State  to 
another.  Such  statute  refers  only  to  a  paper,  which  de- 
pends upon  a  lottery,  the  drawing  of  which  has  not  yet 
taken  place. 

In  Champion  vs.  Ames,  188  U.  S.,  321,  47  Law  Ed.,  496, 
the  Supreme  Court  held  that  the  carriage  of  lottery  tick- 
ets from  one  State  to  another,  by  an  express  company, 
engaged  in  carrying  freight  and  packages  from  State  to 
State,  is  interstate  commerce,  which  Congress,  under  its 
power  to  regulate,  may  prohibit  by  making  it  an  offense 
against  the  United  States  to  cause  such  tickets  to  be  so 
carried. 

In  Francis  vs.  United  States,  188  U.  S.,  375,  47  Law 
Ed.,  510,  the  Supreme  Court  held  that  policy  slips,  writ- 
ten by  a  customer  to  indicate  his  choice  of  numbers,  and 
delivered  by  him  to  an  agent  of  the  policy  game,  to  be 
forwarded  by  him  to  headquarters  in  another  State,  are 
not  within  this  Act.  Gathering  the  facts  from  the  opin- 
ion, they  show,  in  substance,  that  the  policy  game,  the 
lottery  in  question,  had  its  headquarters  in  Ohio,  and 
agencies  in  different  States.  A  person  wishing  to  take  a 
chance  went  to  one  of  these  agencies  (in  this  case,  in  Ken- 
tucky), selected  three  or  more  numbers,  wrote  them  on  a 
slip,  and  handed  the  slip  to  the  agent  (in  this  case,  to 
the  defendant  HofT)  paying  the  price  of  the  chance  at 
the  same  time,  and  keeping  a  duplicate,  which  was  the 
purchaser's  voucher  for  his  selection.  The  slip  was  then 
taken  by  the  defendant  Edgar,  to  be  carried  to  the  prin- 
cipal office,  which  was,  it  will  be  remembered,  in  Ohio; 
where  afterwards,  in  the  regular  course,  there  was  a 
drawing  by  the  defendant  Francis.     Thus,  the  carriage 


Offenses  Against  Foreign  &  Interstate  Commerce.  449 

from  Kentucky  to  Ohio,  or  from  one  State  to  another, 
relied  upon  as  the  object  of  the  conspiracy,  and  as  the 
overt  act  in  pursuance  of  the  conspiracy,  was  the  carriage 
by  Edgar  of  slips  delivered  to  Hoff  by  the  person  wishing 
to  take  a  chance,  as  above  described.  It  will  thus  be 
noticed  that  the  slips  were  at  home,  as  between  the  pur- 
chaser and  the  lottery,  when  put  into  Hoff's  hands  in 
Kentucky.  They  had  reached  their  final  destination  in 
point  of  law,  and  their  later  movements  were  internal 
circulation  within  the  sphere  of  the  lottery  company's 
possession;   and  the  Supreme  Court  said: 

"Therefore,  the  question  is  suggested  whether  the  carriage  of  a 
paper  of  any  sort  by  its  owner,  or  the  owner's  servant,  properly  so- 
called,  with  no  view  of  a  later  change  of  possession,  can  be  commerce, 
even  when  the  carriage  is  in  the  aid  of  some  business  or  traffic.  The 
case  is  different  from  one  where,  the  carriage  being  done  by  an  in- 
dependent carrier,  it  is  commerce  merely  by  reason  of  the  business  of 
carriage." 

This  question,  however,  the  Supreme  Court  did  not  see 
fit  to  answer,  for  the  case  went  off  upon  another  ground, 
to  wit,  upon  the  ground  that  the  papers  did  not  represent 
a  ticket  or  interest  in  a  lottery 

"We  assume,  for  purposes  of  decision,  that  the  papers  kept  by  the 
purchasers  were  tickets,  or  did  represent  an  interest  in  a  lottery;  but 
these  papers  did  not  leave  Kentucky." 


§  264.     Interstate  Shipment  of  Intoxicating  Liquors; 
Delivery  to  be  Made  Only  to  Bona  Fide  Consignee.- 
Brand  new  legislation  is  Section  238  of  the  new  Code, 
which  reads  as  follows: 

"Sec.  238.  Any  officer,  agent,  or  employee  of  any  railroad  com- 
pany, express  company,  or  other  common  carrier,  who  shall  knowingly 
deliver  or  cause  to  be  delivered  to  any  person  other  than  the  person 
to  whom  it  has  been  consigned,  unless  upon  the  written  order  in  each 
instance  of  the  bona  fide  consignee,  or  to  any  fictitious  person,  or  to 
any  person  under  a  fictitious  name,  any  spirituous,  vinous,  malted,  fer- 
mented, or  other  intoxicating  liquor  of  any  kind  which  has  been 
shipped  from  one  State,  Territory,  or  District  of  the  United  States,  or 
place  noncontiguous  to  but  subject  to  the  jurisdiction  thereof,  into  any 
other  State,  Territory,  or  District  of  the  United  States,  or  place  non-con- 
tiguous to  but  subject  to  the  jurisdiction  thereof,  or  from  any  foreign 
29 


450  Federal  Criminal  Law  Procedure. 

country  into  any  State,  Territory,  or  District  of  the  United  States,  or 
place  non-contiguous  to  but  subject  to  the  jurisdiction  thereof,  shall 
be  fined  not  more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  two  years,  or  both." 

This  section,  it  will  be  noticed,  contains  three  divisions: 
first,  the  liquor  must  be  delivered  to  the  one  to  whom  con- 
signed; second,  the  liquor  must  not  be  delivered  to  any 
fictitious  person;  third,  the  liquor  must  not  be  delivered 
to  any  person  under  a  fictitious  name.  Of  course,  if  the 
liquor  be  consigned  to  a  bona  fide  consignee,  such  con- 
signee may  give  a  written  order  to  another  person  to  re- 
ceive the  liquor. 

Sec.  264  a.  Interstate  Shipment  of  Intoxicating  Liq- 
uor, Continued. 

The  Court  of  Appeals  for  the  7th  circuit  in  Hanini  vs. 
Chicago  Railway  Co.  243  F.  143,  held  that  the  Webb- 
Kenyon  act  of  Mar.  1,  1913,  which  prohibits  the  trans- 
position of  intoxicating  liquor  from  one  state  into  an- 
other, which  is  intended  to  be  received,  possessed,  sold, 
or  used  in  violation  of  any  law  of  such  state,  does  not 
simply  forbid  the  introduction  of  liquor  into  a  state  for 
a  prohibited  use,  but  takes  the  protection  of  interstate 
commerce  away  from  all  receipt  and  possession  of  liquor 
prohibited  by  state  law. 

The  Reed  Amendment,  Mar.  3,  1917,  Compiled  Stat- 
utes, Sec.  8739  a  provides,  "whoever  shall  order,  pur- 
chase, or  cause  intoxicating  liquors  to  be  transported  in 
interstate  commerce,  except  for  scientific,  sacramental, 
medicinal  and  mechanical  purposes,  into  any  state  or  ter- 
ritory the  laws  of  which  state  or  territory  prohibit  the 
manufacture  or  sale  therein  of  intoxicating  liquors  for 
beverage  purposes  shall  be  punished,  as  aforesaid;  Pro- 
vided, that  nothing  herein,  shall  authorize  the  shipment 
of  liquor  into  any  state  contrary  to  the  laws  of  such 
state." 

The  punishment  for  the  violation  of  the  section  is  a 
fine  of  not  more  than  a  thousand  dollars  or  imprisonment 
not  more  than  six  months  or  both;  and  for  any  subse- 
quent offense  shall  be  imprisoned  not  more  than  one  year, 
Sec,  9915,  1919,  Barnes  Code, 


Offenses  Against  Foreign  &  Interstate  Commerce.  451 

An  act  was  passed  August  1890,  providing  thai  intoxi- 
cating liquors  transported  into  a  state  shall  be  subject 
to  the  state  laws;  by  Act  of  Mar.  1,  1913,  congress  de- 
clared a  prohibition,  without  penalty,  to  the  shipment  of 
intoxicating  liquor  into  a  state  in  violation  of  its  law; 
and  on  October  3,  1917,  the  transportaton  of  distilled 
spirits,  with  certain  exceptions,  was  forbidden.  These 
acts  are  shown  at  Sec.  8350,  8351  and  8353  of  Barnes  1919 
Fed.  Code. 

§  265.  Common  Carrier,  Etc.,  Not  to  Collect  Purchase 
Price  of  Interstate  Shipment  of  Intoxicating  Liquors. — 
All  railroads  and  express  companies,  common  carriers,  or 
other  persons  engaged  in  interstate  commerce,  cannot, 
in  any  way,  aid  in  the  transaction  of  the  so-called  C.  0.  D. 
liquor  business,  since  the  passage  of  Section  239  of  the 
new  Code,  which  is  new  legislation,  in  the  following 
words : 

"Sec.  239.  Any  railroad  company,  express  company,  or  other  com- 
mon carrier,  or  any  other  person  who,  in  connection  with  the  trans- 
portation of  any  spirituous,  vinous,  malted,  fermented,  or  other  in- 
toxicating liquor  of  any  kind,  from  one  State,  Territory,  or  District 
of  the  United  States,  or  place  non-contiguous  to  but  subject  to  the 
jurisdiction  thereof,  into  any  other  State,  Territory,  or  District  of  the 
United  States,  or  place  non-contiguous  to  but  subject  to  the  jurisdic- 
tion thereof,  or  from  any  foreign  country  into  any  State,  Territory,  or 
District  of  the  United  States,  or'  place  non-contiguous  to  but  subject 
to  the  jurisdiction  thereof,  shall  collect  the  purchase  price  or  any  part 
thereof,  before,  on,  or  after  delivery,  from  the  consignee,  or  from  any 
other  person,  or  shall  in  any  manner  act  as  the  agent  of  the  buyer  or 
seller  of  any  such  liquor,  for  the  purpose  of  buying  or  selling  or  com- 
pleting the  sale  thereof,  saving  only  in  the  actual  transportation  and 
delivery  of  the  same,  shall  be  fined  not  more  than  five  thousand  dol- 
lars." 

It  will  be  noted  that  no  part  of  the  purchase  price  shall 
be  collected  by  the  carrier  from  the  consignee  before  de- 
livery, at  the  time  of  delivery,  or  after  delivery;  nor  can 
such  collection  be  made  from  any  other  person.  It  will 
also  be  noted  that  the  carrier  cannot,  in  any  manner,  act 
as  the  agent  of  the  buyer  or  seller  of  any  such  liquor, 
for  the  purpose  of  buying  or  selling,  or  completing  the 


452  Federal  Criminal  Law. Procedure. 

sale.  In  other  words,  the  carrier  must  engage  only  in 
the  transportation  and  delivery  of  the  same. 

§  265a.  Decisions. — This  statute  creates  a  new  crime 
and  prescribes  a  punishment  for  an  act  and  series  of  acts 
that  were  not  theretofore  inhibited  by  any  law.  Com- 
plaints were  made  that  shipments  of  liquor  would  be 
made  from  one  State  to  another,  in  which  the  sale  of 
liquor  was  prohibited,  and  that  the  bill  of  lading  would 
be  attached  to  a  draft,  and  forwarded  through  banks  for 
collection,  the  consignee  to  secure  the  bill  of  lading  upon 
payment  of  the  draft.  The  scope  of  the  statute  and  the 
desire  to  remedy  the  evil  occasioned  a  diversity  of  opinion 
among  the  Courts.  The  case  of  Danciger  vs.  Stone,  de- 
cided by  Judge  Campbell  in  188  Federal,  511,  held  that 
under  the  foregoing  state  of  facts  the  bank  situated  in 
the  dry  territory  was  not  liable  to  prosecution  under  this 
Statute,  while  Judge  Amidon  held  in  U.  S.  vs.  First  Na- 
tional Bank  of  Anamoose,  190  Federal,  336,  that  under 
a  state  of  facts  which  is  substantially  mentioned,  the 
collecting  bank  would  be  liable  to  prosecution  and  would 
be  guilty  of  a  violation  of  the  statute.  Judge  Amidou  re- 
views in  his  opinion  the  anti-liquor  agitation  and  the  evil 
that  the  law  was  intended  to  remedy.  After  these  two 
nisi  prius  decisions  the  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit,  speaking  through  Judge  Sanborn  in  First 
National  Bank  of  Anamoose  vs.  U.  S.,  206  Federal,  374, 
in  reversing  Judge  Amidon 's  decision,  held  that  a  collec- 
tion by  a  bank  of  a  sight  draft  for  the  purchase  price  of 
liquor  transported  in  interstate  commerce  and  the  de- 
livery to  the  consignee  of  a  bill  of  lading  attached  to 
the  draft,  the  possession  of  which  bill  was  necessary  to 
enable  the  consignee  to  obtain  a  delivery  of  the  liquor, 
does  not  subject  the  bank  to  find  under  Section  239,  and 
thus  the  old  criminal  doctrine  that  a  case  must  be  a  strong 
one  indeed  which  would  justify  a  Court  in  departing 
from  the  plain  meaning  of  words  in  search  of  an  intention 
which  the  words  themselves  do  not  suggest  was  again 
christened. 

Sec.  2.65  b.  Common  Carrier,  etc.,  Not  to  Collect  Pur- 
chase Price,  etc.,  Continued. 


Offenses  Against  Foreign  &  Interstate  Commerce.  453 

Danciger  vs.  Cooley,  U.  S.  Sup.  Ct.  Jan.  7,  1919;  the 
words  "any  other  person"  are  also  construed  in  the 
above  case  to  mean  "any  one." 

All  laws  are  in  effect  prohibiting-  the  introduction  of 
liquor  into  the  Indian  Territory,  viz.,  the  Act  of  189.1, 
1917  and  1918,  U.  S.  vs.  Luther/ 260  F.  579. 

§  266.  Packages  Containing  Intoxicating  Liquors 
Shipped  in  Interstate  Commerce  to  be  Marked  as  Such. — 
Other  new  legislation  upon  the  subject  of  interstate  car- 
riage of  intoxicating  liquors  is  Section  240,  which  reads 
as  follows: 

"Sec.  240.  Whoever  shall  knowingly  ship  or  cause  to  be  shipped, 
from  one  State,  Territory,  or  District  of  the  United  States,  or  place 
non-contiguous  to  but  subject  to  the  jurisdiction  thereof,  into  any 
other  State,  Territory,  or  District  of  the  United  States,  or  place  non- 
contiguous to  but  subject  to  the  jurisdiction  thereof,  or  from  any 
foreign  country  into  any  State,  Territory,  or  District  of  the  United 
States,  or  place  non-contiguous  to  but  subject  to  the  jurisdiction  there- 
of, any  package  of  or  package  containing  any  spirituous,  vinous,  malted, 
fermented,  or  other  intoxicating  liquor  of  any  kind,  unless  such 
package  be  so  labeled  on  the  outside  cover  as  to  plainly  show  the  name 
of  the  consignee,  the  nature  of  its  contents,  and  the  quantity  contained 
therein,  shall  be  fined  not  more  than  five  thousand  dollars;  and  such 
liquor  shall  be  forfeited  to  the  United  States,  and  may  be  seized  and 
condemned  by  like  proceedings  as  those  provided  by  law  for  the 
seizure  and  forfeiture  of  property  imported  into  the  United  States 
contrary  to  law." 

While  Sections  238  and  239  fix  penalties  for  certain 
transgressions  by  the  carrier,  Section  240  creates  a  new 
offense  for  the  shipper  and  does  not  relate,  in  any  sense, 
to  the  carrier.  Under  other  internal  revenue  decisions, 
the  marking  and  branding  of  this  Section  will  be  con- 
strued to  mean  upon  the  outside  of  the  package,  so  as  to 
be  plainly  seen  at  all  times.  Such  mark  or  label  must 
show  the  name  of  the  consignee,  the  nature  of  the  con- 
tents of  the  package,  and  the  quantity  of  the  contents. 

Sec.  266  a.  Packages  Continued — Intoxicating  Liq- 
uors Shipped  in  Interstate  Commerce,  How  Marked; 
Continued. 

The  foregoing  statute  does  not  apply  to  the  carriage 
by  automobile,  One  vs.  U.  S.,  274  F.  99/ 


454  Federal  Criminal  Law  Procedure. 

Section  240  does  not  give  the  state  the  right  to  provide 
such  labelling,  Chicago  vs.  Giles,  235  F.  804. 

A  shipment  of  a  car  load  of  liquor  which  is  made  up 
of  a  great  number  of  individual  orders  would  have  to 
be  broken  up  and  delivered  up  to  each  consignee,  Great 
Northern  vs.  Rainier,  255  F.  762. 

The  venue  for  prosecutions  under  this  act  is  held  where 
originated  or  where  destined,  U.  S.  vs.  Freeman,  U.  S. 
Sup.  Ct.  Oct.  1915. 

The  marks  must  not  be  covered  with  advertisements, 
etc.,  U.  S.  vs.  Company,  242  F.  536. 

§  267.  Importation  of  Certain  Wild  Animals,  Birds, 
and  Reptiles  Forbidden.— The  Act  of  May  25,  1900,  31 
Statute  at  Large,  188,  Second  Supplement,  1174,  becomes 
Section  241  of  the  new  Code,  as  follows: 

"Sec.  241.  The  importation  into  the  United  States,  or  any  Territory, 
or  District  thereof,  of  the  mongoose,  the  so-called  "flying  foxes"  or  fruit 
bats,  the  English  sparrow,  the  starling,  and  such  other  birds  and 
animals,  as  the  Secretary  of  Agriculture  may  from  time  to  time  de- 
clare to  be  injurious  to  the  interests  of  agriculture  or  horticulture,  is 
hereby  prohibited;  and  all  such  birds  or  animals  shall,  upon  arrival  at 
any  port  of  the  United  States,  be  destroyed  or  returned  at  the  expense 
of  the  owner.  No  person  shall  import  into  the  United  States  or  into 
any  Territory  or  District  thereof,  any  foreign  wild  animal  or  bird, 
except  under  special  permit  from  the  Secretary  of  Agriculture:  Pro- 
vided, that  nothing  in  this  section  shall  restrict  the  importation  of 
natural  history  speciments  for  museums  or  scientific  collections,  or  of 
certain  cage  birds,  such  as  domesticated  canaries,  parrots,  or  such 
other  birds  as  the  Secretary  of  Agriculture  may  designate  The  Secre- 
tary of  the  Treasury  is  hereby  authorized  to  make  regulations  for 
carrying  into  effect  the  provisions  of  this  section." 

§  267a.  Migratory  Game  Birds. — Deemed  under  pro- 
tection of  the  United  States — closed  seasons,  etc. — "All 
wild  geese,  wild  swans,  brant,  wild  ducks,  snipe,  plover, 
woodcock,  rail,  wild  pigeons,  and  all  other  migratory 
game  and  insectivorous  birds  which  in  their  northern 
and  southern  migrations  pass  through  or  do  not  remain 
permanently  the  entire  year  within  the  borders  of  any 
state  or  territory,  shall  hereafter  be  deemed  to  be  within 
the  custody  and  protection  of  the  Government  of  the 
United  States,  and  shall  not  be  destroyed  or  taken  con- 
trary to  regulations  hereinafter  provided  therefor. 


Offenses  Against  Foreign  &  Interstate  Commerce.  455 

"The  Department  of  Agriculture  is  hereby  authorized 
and  directed  to  adopt  suitable  regulations  to  give  effect 
to  the  previous  paragraph  by  prescribing  and  fixing 
closed  seasons,  having  due  regard  to  the  zones  of  tem- 
perature, breeding  habits,  and  times  and  line  of  migra- 
tory flight,  thereby  enabling  the  department  to  select 
and  designate  suitable  districts  for  different  portions  of 
the  country,  and  it  shall  be  unlawful  to  shoot  or  by  any 
device  kill  or  seize  and  capture  migratory  birds  within 
the  protection  of  this  law  during  said  closed  seasons, 
and  any  person  who  shall  violate  any  of  the  provisions 
or  regulations  of  this  law  for  the  protection  of  migratory 
birds  shall  be  guilty  of  a  misdemeanor  and  shall  be  fined 
not  more  than  $100  or  imprisoned  not  more  than  90  days, 
or  both,  in  the  discretion  of  the  Court. 

"The  Department  of  Agriculture,  after  the  prepara- 
tion of  said  regulations,  shall  cause  the  same  to  be  made 
public,  and  shall  allow  a  period  of  three  months  in  which 
said  regulations  may  be  examined  and  considered  before 
final  adoption,  permitting,  when  deemed  proper,  public 
hearings  thereon,  and  after  final  adoption  shall  cause 
the  same  to  be  engrossed  and  submitted  to  the  President 
of  the  United  States  for  approval;  Provided,  however, 
That  nothing  herein  contained  shall  be  deemed  to  affect 
or  interfere  with  the  local  laws  of  the  states  and  terri- 
tories for  the  protection  of  non-migratory  game  or  other 
birds  resident  and  breeding  within  their  borders,  nor  to 
prevent  the  States  and  Territories  from  enacting  laws 
and  regulations  to  promote  and  render  efficient  the  regu- 
lations of  the  Department  of  Agriculture  provided  under 
this  statute."  This  Act  was  passed  on  March  4,  1913,  37 
Stats.  L.,  847. 

Judge  Trieber  in  United  States  vs.  Schauver,  214  Fed- 
eral, 154,  held  the  Act  to  be  unconstitutional.  He  holds 
that  migratory  birds  are  not,  when  on  their  usual  mi- 
gration, the  property  of  the  United  States  within  sub- 
section 2  of  Section  3  of  Article  4  of  the  Federal  Constitu- 
tion which  empowers  Congress  to  adopt  rules  respecting 
the  territory  or  other  property  of  the  United  States,  but 
they  are  the  property  of  the  States  in  their  sovereign  ca- 


456  Federal  Criminal  Law  Procedure. 

parity,  as  the  representatives  and  for  the  benefit  of  all 
their  people  in  common,  and  the  Act  protecting  these 
birds  cannot  be  sustained  as  an  exercise  by  Congress  of 
the  right  to  adopt  regulations  for  its  property. 

Sec.  267  b.     Migratory  Birds  Continued. 

The  1916  bird  treaty,  etc.,  is  constitutional,  U.  S.  vs. 
Selkirk,  258  F.  775;  also  see  same  report  at  page  479; 
also  State  vs.  Holland,  U.  S.  Sup.  Ct.  Apr.  1920,  which 
case  gives  a  remedy  for  a  state  to  test  the  federal  act. 

The  act  of  July  3,  1918,  is  not  retroactive,  U.  S..  vs. 
Fuld  Store  Co.,  262  F.  836. 

The  treat}^  of  1916,  was  again  held  constitutional  in 
U.  S.  vs.  Rockefeller,  260  F.  346. 

§  268.  Transportation  of  Prohibited  Animals. — Tak- 
en from  the  same  Act,  will  be  found  the  substance  of 
Section  242  of  the  new  Code,  which  is  in  the  following 
words : 

"Sec.  242.  It  shall  be  unlawful  for  any  person  to  deliver  to  any 
common  carrier  for  transportation,  or  for  any  common  carrier  to 
transport  from  any  State,  Territory,  or  District  of  the  United  States 
to  any  other  State,  Territory,  or  District  thereof,  any  foreign  animals 
or  birds,  the  importation  of  which  is  prohibited,  or  the  dead  bodies  or 
parts  thereof  of  any  wild  animals  or  birds,  where  such  animals  or 
birds  have  been  killed  or  shipped  in  violation  of  the  laws  of  the  State, 
Territory,  or  District  in  which  the  same  were  killed,  or  from  which 
they  were  shipped:  Provided,  That  nothing  herein  shall  prevent  the 
transportation  of  any  dead  birds  or  animals  killed  during  the  season 
when  the  same  may  be  lawfully  captured,  and  the  export  of  which  is 
not  prohibited  by  law  in  the  State,  Territory,  or  District  in  which  the 
same  are  captured  or  killed:  Provided  further,  That  nothing  herein 
shall  prevent  the  importation,  transportation,  or  sale  of  birds  or  birds' 
plumage  manufactured  from  the  feathers  of  barnyard  fowls." 

The  section,  as  it  now  exists,  meets  the  objections,  and 
remedies  the  defects,  noted  in  United  States  vs.  Thomp- 
son, 147  Federal,  637,  wherein  District  Judge  Amidon 
discovered  and  held  that  the  references  to  Section  1  of 
the  original  Act  was  a  clerical  error,  such  section  having 
no  relation  to  the  subject  matter,  because  Section  3  was 
manifestly  intended.  Forms  for  indictment  under  the 
section  as  it  now  exists  will  be  found  after  noticing  the 
criticisms  of  the  Courts  thereon,  at  page  637  of  the  147 


Offenses  Against  Foreign  &  Interstate  Commerce.  451 

Federal,  U.  S.  vs.  Thompson,  and  page  428  of  the' 115 
Federal,  United  States  vs.  Smith.  In  the  last  ease,  the 
Court  held  that  it  was  essential,  to  constitute  the  offense 
under  the  provisions  of  the  section,  that  the  prohibited 
game  should  either  have  been  shipped,  or  delivered  to 
the  carrier  for  shipment,  and  an  indictment  which 
charged  the  defendant  with  intent  to  ship  it  by  interstate 
commerce,  or  having  concealed  the  same  in  unmarked 
packages  for  the  purpose  of  such  shipment,  in  evasion  or 
violation  of  the  Act,  without  alleging  delivery  to  a  car- 
rier, was  insufficient. 

§  268a.  Constitutionality  of  Statute. — This  statute 
has  been  held  constitutional  by  the  Circuit  Court  of  Ap- 
peals for  the  Eighth  Circuit  in  Rupert  vs.  U.  S.,  181  Fed- 
eral, 88,  and  in  the  same  case  it  was  determined  that  an 
indictment  which  averred  that  quail  which  were  killed  in 
the  open  season  and  which  were  delivered  to  a  carrier  for 
transportation  from  Oklahoma  into  another  State  "with 
intent  and  for  the  purpose  of  being  shipped  and  trans- 
ported out  of  Oklahoma"  need  not  allege  the  months 
in  which  the  quail  were  killed.  The  Congress  of  the 
United  States  has  the  constitutional  right  to  prevent  the 
shipment  in  interstate  commerce  of  game  when  such 
shipments  would  be  in  violation  of  the  laws  of  the  state 
in  which  such  game  was  killed.  Rupert  vs.  U.  S.,  181 
Federal,  87.  Quail  or  game  belong  to  the  State  or  rather 
the  people  collectively  thereof  and  are  subject  to  the 
local  laws  as  to  killing,  and  the  times  therefor,  and  the 
shipment.  Geer  vs.  Ct.,  161  U.  S.,  519;  Lawton  vs.  Steele, 
152  U.  S.,  133;  Rupert  vs.  U.  S.,  181  Federal,  87;  U.  S. 
vs.  Shauver,  214  Federal,  154.  Act  of  March  4,  1913.  as 
to  migratory  birds  held  unconstitutional,  U.  S.  vs.  Mc- 
Cullagh,  221  Federal,  288. 

§  269.  Marking  of  Packages. — Section  243  of  the  new 
Code  was  taken  from  the  same  Act  of  May  25,  1900,  and 
is  as  follows: 

"Sec.  243.  All  packages  containing  the  dead  bodies,  or  the  plumage, 
or  parts  thereof,  of  game  animals,  or  game  or  other  wild  birds,  when 
shipped  in  interstate  or  foreign  commerce,  shall  be  plainly  and  clearly 
marked,  so  that  the  name  and  address  of  the  shipper,  and  the  nature 


458  Federal  Criminal  Law  Procedure. 

of  the  contents  may  be  readily  ascertained  on  an  inspection  of  the 
outside  of  such  package." 

§  270.    Penalty  for  Violation  of  Preceding  Sections.- 

Section  244  of  the  new  Code  reads  as  follows: 

"Sec.  244.  For  each  evasion  or  violation  of  any  provision  of  the 
three  sections  last  preceding,  the  shipper  shall  be  fined  not  more  than 
two  hundred  dollars;  the  consignee  knowingly  receiving  such  articles 
so  shipped  and  transported  in  violation  of  said  sections  shall  be  fined 
not  more  than  two  hundred  dollars;  and  the  carrier  knowingly  car- 
rying or  transporting  the  same  in  violation  of  said  sections  shall  ba 
fined  not  more  than  two  hundred  dollars." 

§  271.  Depositing  Obscene  Books,  Etc.,  with  Common 
Carrier. — Section  245  of  the  new  Code  is  in  the  follow- 
ing words: 

"Sec.  245.  Whoever  shall  bring  or  cause  to  be  brought  into  the 
United  States  or  any  place  subject  to  the  jurisdiction  thereof,  from 
any  foreign  country,  or  shall  therein  knowingly  deposit  or  cause  to  be 
deposited  with  any  express  company  or  other  common  carrier,  for 
carriage  from  one  State,  Territory,  or  District  of  the  United  States, 
or  place  non-contiguous  to  but  subject  to  the  jurisdiction  thereof,  to 
any  other  State,  Territory,  or  District  of  the  United  States,  or  place 
non-contiguous  to  but  subject  to  the  jurisdiction  thereof,  or'  from  any 
place  in  or  subject  to  the  jurisdiction  of  the  United  States  through  a 
foreign  country  to  any  place  in  or  subject  to  the  jurisdiction  thereof. 
or  from  any  place  in  or  subject  to  the  jurisdiction  of  the  United  States 
to  a  foreign  country,  any  obscene,  lewd,  or  lascivious,  or  any  filthy  book, 
pamphlet,  picture,  paper,  letter,  writing,  print,  or  other  matter  of  in- 
decent character,  or  any  drug,  medicine,  article,  or  thing  designed, 
adapted,  or  intended  for  preventing  conception,  or  producing  abortion, 
•or  for  any  indecent  or  immoral  use,  or  any  written  or  printed  card, 
letter,  circular,  book,  pamphlet,  advertisement,  or  notice  of  how,  or  of 
whom,  or  by  what  means,  any  of  the  hereinbefore  mentioned  articles, 
matters,  or  things  may  be  obtained  or  made;  or  whoever  shall  know- 
ingly take  or  cause  to  be  taken  from  such  express  company  or  othor 
common  carrier  any  matter  or  thing  the  depositing  of  which  for  car- 
riage is  herein  made  unlawful,  shall  be  fined  not  more  than  five  thous- 
and dollars,  or  imprisoned  not  more  than  five  years,  or  both." 

This  section,  it  will  be  noticed,  relates  not  to  the  use  of 
the  Post-office  establishment  in  the  transmission  of  things 
therein  denounced,  but  to  the  use  of  a  person  or  common 
carrier,   or   express  company. 


Offenses  Against  Foreign  &  Interstate  Commerce.  459 

The  meat  of  the  statute  is  substantially  the  same  as 
Section  211  of  the  new  Code,  which  relates  to  obscene 
matter,  etc.,  as  being  non-mailable,  and  which  is  de- 
nounced in  Section  211  of  the  new  Code,  heretofore 
treated. 

§  271a.  The  Statute  is  Constitutional. — The  power  of 
Congress  to  regulate  the  transportation  or  sending  of  mat- 
ter or  things  or  persons  from  one  State  to  another,  wheth- 
er by  a  Federal  utility  or  otherwise,  is  bevond  dispute. 
Lottery  Cases  188  U.  S.,  321;  Hoke  vs.  U.  S.,  227  U.  S., 
308;  Reid  vs.  Colorado,  187  U.  S.,  137;  The  Daniel  Ball, 
10  Wall.,  557;   Coe  vs.  Errol,  116  U.  S.,  517. 

A  demurrer  to  an  indictment  under  the  foregoing  sec- 
tion challenging  the  constitutionality  of  the  statute  was 
overruled  in  Clark  vs.  U.  S.,  211  Federal,  916.  In  the 
Clark  case  it  was  also  determined  that  when  the  indict- 
ment did  not  limit  the  charge  to  particular  passages  or 
parts  of  a  book,  the  defendants  were  entitled  to  have  the 
whole  book  introduced  in  evidence  and  considered  by 
the  jury  under  proper  instructions  from  the  Court. 

§  271b.  Anti-Pass  Law.— The  Act  of  June  29,  1906, 
contains  the  following  provision: 

"No  common  carrier,  subject  to  the  provisions  of  this  Act,  shall 
after  January  1,  1907,  directly  or  indirectly,  issue  or  give  any  inter- 
state free  ticket,  free  pass,  or  free  transportation  for  passengers,  ex- 
cept to  its  employees  and  their  families,  its  officers,  agents,  surgeons, 
physicians,  and  attorneys-at-law;  to  minister  of  religion,  traveling  secre- 
taries of  railroad,  Young  Men's  Christian  Association,  inmates  of 
hospitals  and  charitable  and  eleemosynary  institutions,  and  persons 
exclusively  engaged  in  charitable  and  eleemosynary  work;  to  in- 
digent, destitute  and  homeless  persons,  and  to  such  persons  when  trans- 
ferred by  charitable  societies  or  hospitals,  and  the  necessary  agents 
employed  in  such  transfer;  to  inmates  of  the  National  homes  or  State 
homes  for  disabled  volunteer  soldiers,  and  of  soldiers  and  sailors 
homes,  including  those  about  to  enter  and  those  returning  home  after 
discharge,  and  boards  of  managers  of  such  homes;  to  necessary  care- 
takers of  live  stock,  poultry  and  fruit;  to  employees  on  sleeping  cars, 
express  cars,  and  to  linemen  of  telegraphic  and  telephone  companies; 
to  railway  mail  service  employees,  post-office  inspectors,  customs  in- 
spectors and  immigrant  inspectors;  to  newsboys  on  trains,  baggage 
agents,  witnesses  attending  any  legal  investigation  in  which  the  com- 
mon carrier  is  interested,  persons  injured  in  wrecks,  and  physicians 
and  nurses  attending  such  persons;  Provided,  that  this  provision  shall 
not  be  construed  to  prohibit  the  interchange  of  passes  for  the  officers, 


460  Federal  Criminal  Law  Procedure. 

agents  and  employees  of  common  carriers  and  their  families;  nor  to 
prohibit  any  common  carrier  from  carrying  passengers  free  with  the 
object  of  providing  relief  in  cases  of  general  epidemic,  pestilence  or 
other  calamitous  visitation:  Provided,  further,  that  the  term  employees 
as  used  in  this  paragraph  shall  include  furloughed,  pensioned  and  su- 
perannuated employees,  persons  who  have  become  disabled  or  infirm 
in  the  service  of  any  such  common  carrier,  and  the  remains  of  a  per- 
son killed  in  the  employment  of  a  carrier,  and  ex-employees  traveling 
for  the  purpose  of  entering  the  service  of  any  such  common  carrier; 
and  the  term  families  as  used  in  this  paragraph  shall  include  the 
families  of  those  persons  named  in  this  proviso,  also  the  families  of 
persons  killed  while  in  the  service  of  any  such  common  carrier.  Any 
common  carrier  violating  this  provision  shall  be  deemed  guilty  of  a 
misdemeanor,  and  for  such  offense,  on  conviction,  snail  pay  to  the 
United  States  a  penalty  of  not  less  than  $100  nor  more  than  $2,000, 
and  any  person  other  than  the  persons  excepted  in  this  provision,  who 
uses  any  such  interstate  free  ticket,  free  pass,  or  free  transportation, 
shall  be  subject  to  a  like  penalty." 

35th  Statute  at  Large,  60  page  256,  1909,  Supplement 
Federal  Statutes,  Annotated. 

Manifestly,  the  provision  applies  to  only  such  common 
carriers  as  are  included  in  the  said  Act. 

It  is  not  thought  that  the  Section  would  justify  the 
prosecution  of  one  who  stole  tickets  or  passes  or  other 
transportation  from  a  common  carrier,  and  used  the  same, 
for  the  reason  that  the  word  Such,  in  the  latter  portion  of 
the  Act,  evidently  refers  to  the  free  ticket,  free  pass,  or 
free  transportation  issued  or  given  directly  or  indirectly 
bv  a  common  carrier. 

The  Act  does  apply  to  one,  who,  having  in  his  posses- 
sion an  interstate  free  ticket  or  pass  issued  by  a  railroad 
company,  sells  it  to  another,  knowing  that  he  is  not  the 
person  named  therein  and  is  not  entitled  to  ride  thereon, 
with  the  intent  that  he  shall  use  it.  U.  S.  vs.  Martin,  176 
Federal,  110. 

§  271c.  Theft  of  Goods  in  Interstate  Commerce. — The 
Act  of  February  13,  1913,  Chapter  50,  37th  Statute  at 
Large,  670,  page  203,  1914,  Federal  Statutes,  Annotated, 
provides  as  follows: 

"That  whoever  shall  unlawfully  break  the  seal  of  any  railroad  car 
containing  interstate  or  foreign  shipments  of  freight  or  express,  or  shall 
enter  in  such  car,  with  intent,  in  either  case,  to  commit  larceny  there- 


Offenses  Against  Foreign  &  Interstate  Commerce.  461 

in;  or  whoever  shall  steal  or  unlawfully  take,  carry  away  or  conceal, 
or  by  fraud  or  deception  obtain  from  any  railroad  tar,  station  house, 
platform,  depot,  steam  boat,  vessel  or  wharf,  with  intent  to  convert 
to  his  own  use,  any  goods  or  chattels,  moving  as,  or  which  are  a 
part  of,  or  which  constitute  an  interstate  or  foreign  shipment 
of  freight  or  express,  or  shall  buy  or  receive  or  have  in  his  possession 
any  such  goods  or  chattels,  knowing  the  same  to  have  been  stolen;  or 
whoever  shall  steal  or  shall  unlawfully  take,  carry  away,  or  by  fraud 
or  deception  obtain,  with  intent  to  convert  to  his  own  use,  any  bag- 
gage which  shall  have  come  into  the  possession  of  any  common  car- 
rier for  transportation  from  one  State  or  Territory,  or  the  District  of 
Columbia,  to  another  State  or  Territory,  or  the  District  of  Columbia,  or 
to  a  foreign  country,  or  from  a  foreign  country  to  any  State  or  Ter- 
ritory, or  the  District  of  Columbia,  or  shall  break  into,  steal,  take, 
carry  away,  or  conceal  any  of  the  contents  of  such  baggage,  or  shall 
buy,  receive,  or  have  in  his  possession  any  such  baggage,  or  any  ar- 
ticle therefrom  of  whatsoever  nature,  knowing  the  same  to  have  been 
stolen,  shall  in  each  case  be  fined  not  more  than  $5,000,  or  imprisoned 
not  more  than  ten  years,  or  both,  and  prosecutions  therefor  may  be 
instituted  in  any  District  wherein  the  crime  shall  have  been  com- 
mitted. The  carrying  or  transporting  of  any  such  freight,  express,  bag- 
gage, goods  or  chattels  from  one  State  or  Territory,  or  the  District  of 
Columbia,  into  another  State  or  Territory,  or  the  District  of  Columbia, 
knowing  the  same  to  have  been  stolen,  shall  constitute  a  separate  or- 
fense,  and  subject  the  offender  to  the  penalties  above  described  for 
unlawful  taking,  and  the  prosecutions  therefor  may  be  instituted  in 
any  District  into  which  said  freight,  express,  baggage,  goods  or  chat- 
tels shall  have  been  removed,  or  into  which  they  shall  have  been 
brought  by  such  offender." 

The  next  section  provides  that  nothing  contained  in 
the  above  section  shall  impair  the  jurisdiction  of  the 
Courts  of  the  several  States,  and  also  provides  that  a 
judgment  of  conviction  or  acquittal  in  a  State  Court  shall 
be  a  bar  to  prosecution  therefor  in  the  United  States 
Courts.  This  Statute  marks  an  outer  limit  of  the  juris- 
diction of  the  Federal  Government  over  interstate  com- 
merce, and  the  Courts,  in  enforcing  the  same,  should  ap- 
ply all  of  the  rigid  rules  of  strict  construction  that  have 
been  formulated  in  criminal  cases.  As  a  matter  of  fact, 
thefts  committed  from  interstate  shipments  are,  as  a 
rule,  small  offenses,  which  should  be  cognizable  solely 
in  the  State  Courts.  There  can,  however,  be  no  question 
as  to  the  constitutionality  of  this  section,  and  while  it  is 


462  Federal  Criminal  Law  Procedure. 

a  useful  statute,  in  many  ways  it  is  also  a  far-reach  of 
the  Federal  Government. 

Sec.  271  c.  c.  Theft  of  Goods  in  Inter-State  Commerce 
Continued. 

"Station  house"  means  a  railway  house  and  not  a 
transfer  station  house,  Beckerman  vs.  U.  S.,  267  F.  185. 

For  forging  a  bill  of  lading  see  the  Act  of  Aug.  29, 
1916,  Jackson  vs.  U.  S.,  266  F.  770. 

Allegation  of  ownership  immaterial,  Fleck  vs.  U.  S., 
265  F.  617. 

The  following  are  cases  under  the  foregoing  statute; 
IT.  S.  vs.  Kambertz,  236  F.  378,  holding  prosecution  may 
be  had  in  three  different  manners,  United  States  has  right 
as  bailee,  U.  S.  vs.  U.  S.,  262  F.  459;  receiving  stolen 
property,  U.  S.  vs.  Le  Fanti,  255  F.  210.  The  allegation 
of  ownership  may  be  laid  in  the  United  States,  under  the 
railway  control  statute  of  Mar.  21,  1918,  U.  S.  vs.  Kam- 
bertz, 256  F.  247.  One  buys  at  his  own  peril  if  he  knows 
the  goods  are  stolen,  Grandi  vs.  U.  S.,  262  F.  123. 

An  indictment  for  receiving  stolen  property  must  al- 
lege the  intent  "to  convert  to  one's  own  use  or  gain," 
Cohn  vs.  U.  S.,  258  F.  353. 

From  one  point  in  a  state  to  another  point  in  the  same 
state  is  .a  violation,  if  the  goods  go  out  of  the  state  en- 
route,  U.  S.  vs.  Maynohan,  258  F.  529. 

Receiving  stolen  goods,  U.  S.  vs.  Sullivan,  250  F.  623. 

The  statute  applies  even  to  carrier's  own  property 
when  in  transit,  Freidman  vs.  U.  S.,  233  F.  429. 

As  to  allegation  of  ownership,  receiving,  etc.,  see  Kasle 
vs.  U.  S.,  233  F.  878.  The  legislation  is  constitutional, 
Morris  vs.  U.  S.,  229  F.  516;  Block  vs.  U.  S.,  261  F.  321; 
Pounds  vs.  U.  S.,  265  F.  242. 

Knowledge  of  theft  from  interstate  shipment  is  not  es- 
sential in  receiving  prosecution,  Freedman  vs.  U.  S.,  274 
F.  603;  the  larceny  must  be  from  the  places  stated  in 
the  statute,  274  F.  596. 

Goods  shipped  between  points  in  the  same  state  but 
passing  through  another  state  are  moving  in  interstate 

Sec.  217.  c.  c.  c.  Theft  of  Automobile  and  Inter- 
commerce,  U.  S.  vs.  Yohn,  275  F.  232. 


Offenses  Against  Fokeign  &  Interstate  Commerce.  463 

By  the  Act  of  Oct.  29, 1919,  the  theft  and  transportation 
in  interstate  commerce  of  an  automobile  was  made  an 
offense  punishable  by  fine  not  to  exceed  five  thousand 
dollars  and  imprisonment  not  to  exceed  five  years. 

The  statute  reads  "that  whoever  shall  transport  or 
cause  to  be  transported  in  interstate  or  foreign  commerce 
a  motor  vehicle,  knowing  the  same  to  have  been  stolen, 
shall  be  punished  as  aforesaid." 

"Whoever  shall  receive,  conceal,  store,  barter,  sell,  or 
dispose  of  any  motor  vehicle,  moving  as,  or  which  is 
a  part  of,  or  which  constitutes  interstate  or  foreign  com- 
merce, knowing  the  same  to  have  been  stolen,  shall  be 
punished  by  fine  of  not  more  than  five  thousand  dollars 
or  by  imprisonment  of  not  more  than  five  years,  or  both, 
this  violation  may  be  punished  in  any  district  in  or 
through  which  such  vehicle  was  transported  or  removed 
by  such  offender. 

Act  Oct.  29,  1919;  Sec.  9945  a,  1921  Supplement  Barnes 
Fed.  Code. 

§  271d.  Cotton  Future  Contracts. — The  Act  of  Au- 
gust 18, 1914,  provides  that  it  shall  be  known  as  the  Unit- 
ed States  Cotton  Futures  Act.  In  the  second  Section  there- 
of it  defines  contract  of  sale  and  the  meaning  of  the  word 
person,  and  in  the  third  section  thereof  levies  a  tax  of 
2  cents  per  pound  of  the  cotton  involved  in  any  contract 
for  future  delivery,  made  at,  on,  or  in  any  exchange, 
board  of  trade,  or  similar  institution  or  place  of  business. 

Section  4  provides  a  form  for  such  contracts. 

Section  5  specifies  contracts  that  are  exempt  from  the 
tax. 

Section  6  gives  a  basis  for  determining  cotton  values, 
and, 

Section  7  provides  that  for  the  purposes  of  the  Act  the 
only  markets  which  shall  be  considered  bona  fide  spot 
markets  shall  be  those  which  the  Secretary  of  Agricul- 
ture shall,  from  time  to  time,  after  investigation,  deter- 
mine and  designate  to  be  such,  and  of  which  she  shall 
give  public  notice. 

Section  8  tells  what  markets  the  Secretary  may  con- 
sider. 

Section  9  establishes  certain  standards  of  cotton. 


464  Federal  Criminal  Law  Procedure. 

Section  10  sets  forth  certain  contracts  that  are  exempt. 

Section  11  fixes  an  excise  tax  of  2  cents  per  pound  of 
the  cotton  ordered  bought  or  sold  for  future  delivery. 

Section  12  provides  for  the  payment  of  tax  by  the  use 
of  stamps. 

Section  13  declares  all  contracts  made  in  violation  of 
the  Act  shall  be  unenforceable. 

Section  14  empowers  the  Secretary  of  the  Treasury  to 
make  rules  and  regulations  to  collect  the  taxes  and  carry 
the  Act  into  effect,  and, 

Section  15  provides  as  follows:  "That  any  person 
liable  to  the  payment  of  any  tax  imposed  by  this  Act  who 
fails  to  pay,  or  evades,  or  attempts  to  evade  the  payment 
of  such  tax,  and  any  person  who  otherwise  violates  any 
provision  of  this  Act,  or  any  rule  or  regulation  made  in 
pursuance  hereof,  shall  be  deemed  guilty  of  a  misdemean- 
or, and  upon  conviction  thereof  shall  be  fined  not  less 
than  $100,  nor  more  than  $20,000,  in  the  discretion  of 
the  Court;  and  in  case  of  natural  persons,  may,  in  addi- 
tion, be  punished  by  imprisonment  for  not  less  than  60 
days  nor  more  than  3  years,  in  the  discretion  of  the 
Court." 

Section  16  rewards  informants  and  makes  it  the  duty 
of  District  Attorneys  to  prosecute. 

Section  17  provides  for  immunity. 

§  271e.  Opium,  or  Cocoa  Leaves,  Their  Salts,  De- 
rivatives or  Preparations.— The  production,  importation, 
manufacture,  compounding,  sale,  dispensing,  or  giving 
away  of  opium,  or  cocoa  leaves,  their  salts,  derivatives 
or  preparations,  was  regulated  and  prohibited  in  the  man- 
ned indicated  by  the  following  statute,  which  was  the 
Act  of  December  17,  1914: 

"That  on  and  after  the  first  day  of  March,  nineteen  hundred  and 
fifteen,  every  person  who  produces,  imports,  manufactures,  compounds, 
deals  in,  dispenses,  sells,  distributes,  or  gives  away  opium  or  cocoa 
leaves  or  any  compound,  manufacture,  salt,  derivative,  or  preparation 
thereof,  shall  register  with  the  collector  of  internal  revenue  of  the 
district  his  name  or  style,  place  of  business,  and  place  or  places  where 
such  business  is  to  be  carried  on:  Provided,  that  the  office,  or  if  none, 
then  the  residence  of  any  person  shall  be  considered  for  the  purpose 
of  this  Act  to  be  his  place  of  business.  At  the  time  of  such  registry 
and  on  or  before  the  first  day  of  July,  annually  thereafter,  every  per- 


Offenses  Against  Foreign  &  Interstate  Commerce.  465 

son  who  produces,  imports,  manufactures,  compounds,  deals  in,  dis- 
penses, sells,  distributes,  or  gives  away  any  of  the  aforesaid  drugs 
shall  pay  to  the  said  collector  a  special  tax  at  the  rate  of  $1  per  an- 
num: Provided,  that  no  employee  of  any  person  who  produces,  im- 
ports, manufactures,  compounds,  deals  in,  dispenses,  sells,  distributes, 
or  gives  away  any  of  the  aforesaid  drugs,  acting  within  the  scope  of 
his  employment,  shall  be  required  to  register  or  to  pay  the  special 
tax  provided  by  this  section:  Provided,  further,  that  the  person  who 
employs  him  shall  have  registered  and  paid  the  special  tax  as  re- 
quired by  this  section:  Provided  further,  that  officers  of  the  United 
States  Government  who  are  lawfully  engaged  in  making  purchases  of 
the  above-named  drugs  for  the  various  departments  of  the  Army  and 
Navy,  the  Public  Health  Service,  and  for  Government  hospitals  and 
prisons,  and  officers  of  the  State  Government,  or  of  any  county  or 
municipality  therein,  who  are  lawfully  engaged  in  making  purchases 
of  the  above-named  drugs  for  State,  county,  or  municipal  hospitals 
or  prisons,  and  officials  of  any  territory  or  insular  possession  of  the 
District  of  Columbia  or  of  the  United  States  who  are  lawfully  engaged 
in  the  making  purchases  of  the  above-named  drugs  for  hospitals  or 
prisons  therein  shall  not  be  required  to  register  and  pay  the  special  tax 
as  herein  required. 

"It  shall  be  unlawful  for  any  person  required  to  register  under  the 
terms  of  this  Act  to  produce,  import,  manufacture,  compound,  deal 
in,  dispense,  sell,  distribute,  or  give  away  any  of  the  aforesaid  drugs 
without  having  registered  and  paid  the  special  tax  provided  for  in  this 
section. 

"That  the  word  'person'  as  used  in  this  Act  shall  be  construed  to 
mean  and  include  a  partnership,  association,  company,  or  corporation, 
as  well  as  a  natural  person;  and  all  provisions  of  existing  law  re- 
lating to  special  taxes,  so  far  as  applicable,  including  the  provisions 
of  section  thirty-two  hundred  and  forty  of  the  Revised  Statutes  of 
the  United  States  are  hereby  extended  to  the  special  tax  herein  im- 
posed. 

That  the  Commissioner  of  Internal* Revenue,  with  the  approval  of 
the  Secretary  of  the  Treasury,  shall  make  all  needful  rules  and  regula- 
tions for  carrying  the  provisions  of  this  Act  into  effect. 

"Sec.  2.  That  it  shall  be  unlawful  for  any  person  to  sell,  barter, 
exchange,  or  give  away  any  of  the  aforesaid  drugs  except  in  pursuance 
of  a  written  order  of  the  person  to  whom  such  article  is  sold,  bartered, 
exchanged,  or  given,  on  a  form  to  be  issued  in  blank  for  that  purpose 
by  the  Commissioner  of  Internal  Revenue.  Every  person  who  shall 
accept  any  such  order,  and  in  pursuance  thereof  shall  sell,  barter, 
exchange,  or  give  away  any  of  the  aforesaid  drugs,  shall  preserve  such 
order  for  a  period  of  two  years  in  such  a  way  as  to  be  readily  ac- 
cessible to  inspection  by  any  officer,  agent,  or  employee  of  the  Treasury 
Department  duly  authorized  for  that  purpose,  and  the  State,  Territorial, 
District,  municipal,  and  insular  officials  named  in  Section  5  of  this 
Act.     Every  person  who  shall  give  an  order  as  herein  provided  to  any 

30 


466  Federal  Criminal  Law  Procedure. 

other  person  for  any  of  the  aforesaid  drugs  shall,  at  or  before  the 
time  of  giving  such  order,  make  or  cause  to  be  made  a  duplicate  there 
of  on  a  form  to  be  issued  in  blank  for  that  purpose  by  the  Commissioner 
of  Internal  Revenue,  and  in  case  of  the  acceptance  of  such  order, 
shall  preserve  such  duplicate  for  said  period  of  two  years  in  such  a 
way  as  to  be  readily  accessible  to  inspection  by  the  officers,  agents, 
employees,  and  officials  hereinbefore  mentioned.  Nothing  contained 
in  this  section  shall  apply — 

"(a)  To  the  dispensing  or  distribution  of  any  of  the  aforesaid  drugs 
to  a  patient  by  a  physician,  dentist,  or  veterinary  surgeon  registered 
under  this  Act  in  the  course  of  his  professional  practice  only: .  Pro- 
vided, that  such  physician,  dentist,  or  veterinary  surgeon  shall  keep 
a  record  of  all  such  drugs  dispensed  or  distributed,  showing  the 
amount  dispensed  or  distributed,  the  date,  and  the  name  and  address 
of  the  patient  to  whom  such  drugs  are  dispensed  or  distributed,  except 
such  as  may  be  dispensed  or  distributed  to  a  patient  upon  whom  such 
physician,  dentist  or  veterinary  surgeon  shall  personally  attend;  and 
such  record  shall  be  kept  for  a  period  of  two  years  from  the  date  of 
dispensing  or  distributing  such  drugs,  subject  to  inspection,  as  pro- 
vided  in   this  Act. 

"(b)  To  the  sale,  dispensing,  or  distribution  of  any  of  the  aforesaid 
drugs  by  a  dealer  to  a  consumer  under  and  in  pursuance  of  a  written 
prescription  issued  by  a  physician,  dentist,  or  veterinary  surgeon  reg- 
istered under  this  Act:  Provided,  however,  that  such  prescription 
shall  be  dated  as  of  the  day  on  which  signed  and  shall  be  signed  by 
the  physician,  dentist,  or  veterinary  surgeon  who  shall  have  issued  the 
same:  And  provided  further,  that  such  dealer  shall  preserve  such 
prescription  for  a  period  of  two  years  from  the  day  on  which  such 
prescription  is  filled  in  such  a  way  as  to  be  readily  accessible  to  in- 
spection by  the  officers,  agents,  employees,  and  officials  hereinbefore 
mentioned. 

"(c)  To  the  sale,  exportation,  shipment  or  delivery  of  any  of  the 
aforesaid  drugs  by  any  person  within  the  United  States  or  any  Ter- 
ritory or  the  District  of  Columbia  or  any  of  the  insular  possessions  of 
the  United  States  to  any  person  in  any  foreign  country,  regulating 
their  entry  in  accordance  with  such  regulations  for  importation  thereof 
into  such  foreign  country  as  are  prescribed  by  said  country,  such  regula- 
tions to  be  promulgated  from  time  to  time  by  the  Secretary  of  State 
of  the  United  States. 

"(d)  To  the  sale,  barter,  exchange,  or  giving  away  of  any  of  the 
aforesaid  drugs  to  any  officer  of  the  United  States  Government  or  of 
any  State,  territorial,  district,  county,  or  municipal  or  insular  gov- 
ernment lawfully  engaged  in  making  purchases  thereof  for  the  various 
departments  of  the  Army  and  Navy,  the  Public  Health  Service,  and 
for  Government,  State,  territorial  district,  county,  or  municipal  or  in- 
sular hospitals  or  prisons. 


.  '-« 


Offenses  Against  Foreign  &  Interstate  Commerce.  467 

The  Commissioner  of  Internal  Revenue,  with  the  approval  of  the 
Secretary  of  the  Treasury,  shall  cause  suitable  forms  to  be  prepared 
for  the  purposes  above  mentioned,  and  shall  cause  the  same  to  be 
distributed  to  collectors  of  internal  revenue  for  sale  Oy  them  to  those 
persons  who  shall  have  registered  and  paid  the  special  tax  as  required 
by  Section  1  of  this  Act  in  their  districts,  respectively;  and  no  col- 
lector shall  sell  any  of  such  forms  to  any  persons  other  than  a  person 
who  has  registered  and  paid  the  special  tax  as  required  by  Section  1 
of  this  Act  in  his  district.  The  price  at  which  such  forms  shall  be 
sold  by  said  collectors  shall  be  fixed  by  the  Commissioner  of  Internal 
Revenue,  with  the  approval  of  the  Secretary  of  the  Treasury,  but  shall 
not  exceed  the  sum  of  $1  per  hundred.  Every  collector  shall  keep  an 
account  of  the  number  of  such  forms  sold  by  him,  the  name  of  the 
purchasers,  and  the  number  of  such  forms  sold  to  each  of  such  pur- 
chasers. Whenever  any  collector  shall  sell  any  of  such  forms,  he  shall 
cause  the  name  of  the  purchaser  thereof  to  be  plainly  written  or 
stamped  thereon  before  delivering  the  same;  and  no  person  other  than 
such  purchaser  shall  use  any  of  said  forms  bearing  the  name  of  such 
purchaser  for  the  purpose  of  procuring  any  of  the  aforesaid  drugs,  or 
furnish  any  of  the  forms  bearing  the  name  of  such  purchaser  to  any 
person  with  intent  thereby  to  procure  the  shipment  or  delivery  of  any 
of  the  aforesaid  drugs.  It  shall  be  unlawful  for  any  person  to  obtain 
by  means  of  said  order  forms  any  of  the  aforesaid  drugs  for  any  pur- 
pose other  than  the  use,  sale,  or  distribution  thereof  by  him  in  the 
conduct  of  a  lawful  business  in  said  drugs  or  in  the  legitimate  practice 
of  his  profession. 

"The  provisions  of  this  Act  shall  apply  to  the  United  States,  the 
District  of  Columbia,  the  Territory  of  Alaska,  the  Territory  of  Hawaii, 
the  insular  possessions  of  the  United  States,  and  the  Canal  Zone.  In 
Porto  Rico  and  the  Philippine  Islands  the  administration  of  this  Act, 
the  collection  of  the  said  special  tax,  and  the  issuance  of  the  order  forms 
specified  in  Section  2  shall  be  performed  by  the  appropriate  internal- 
revenue  officers  of  those  governments,  and  all  revenues  collected  here- 
under in  Porto  Rico  and  the  Philippine  Islands  shall  accrue  intact  to 
the  general  governments  thereof,  respectively.  The  Courts  of  first 
instance  in  the  Philippine  Islands  shall  possess  and  exercise  jurisdic- 
tion in  all  cases  arising  under  this  Act  in  said  islands.  The  President 
is  authorized  and  directed  to  issue  such  Executive  orders  as  will  car- 
ry into  effect  in  the  Canal  Zone  the  intent  and  purpose  of  this  Act  by 
providing  for  the  registration  and  the  imposition  of  a  special  tax  upon 
all  persons  in  the  Canal  Zone  who  produce,  import,  compound,  deal 
in,  dispense,  sell,  distribute,  or  give  away  opium  or  cocoa  leaves,  their 
salts,  derivatives,  or  preparations. 

"Sec.  3.  That  any  person  who  shall  be  registered  in  any  internal- 
revenue  district  under  the  provisions  of  Section  1  of  this  Act  shall, 
whenever  required  so  to  do  by  the  collector  of  the  district,  render  to 
the  said  collector  a  true  and  correct  statement  or  return,  verified  by 
affidavit,  setting  forth  the  quantity  of  the  aforesaid  drugs  received  by 


468  Federal  Criminal  Law  Procedure. 

him  in  said  internal-revenue  district  during  such  period  immediately 
preceding  the  demand  of  the  collector,  not  exceeding  three  months,  as 
the  said  collector  may  fix  and  determine;  the  names  of  the  persons 
from  whom  the  said  drugs  were  received;  the  quantity  in  each  in- 
stance received  from  each  of  such  persons,  and  the  date  when  received. 

"Sec.  4.  That  it  shall  be  unlawful  for  any  person  who  shall  not 
have  registered  and  paid  the  special  tax  as  required  by  Section  1  of 
this  Act  to  send,  ship,  carry,  or  deliver  any  of  the  aforesaid  drugs 
from  any  State  or  Territory  or  the  District  of  Columbia,  or  any  in- 
sular possession  of  the  United  States,  to  any  person  in  any  other  State 
or  Territory  or  the  District  of  Columbia  or  any  insular  possession  of 
the  United  States:  Provided,  that  nothing  contained  in  this  section 
shall  apply  to  common  carriers  engaged  in  transporting  the  aforesaid 
drugs,  or  to  any  employee  acting  within  the  scope  of  his  employment, 
or  any  person  who  shall  have  registered  and  paid  the  special  tax  as 
required  by  Section  1  of  this  Act,  or  to  any  person  who  shall  deliver 
any  such  drug  which  has  been  prescribed  or  dispensed  by  a  physician, 
dentist,  or  veterinarian  required  to  register  under  the  terms  of  this 
Act,  who  has  been  employed  to  prescribe  for  the  particular  patient 
receiving  such  drug,  or  to  any  United  States,  State,  county,  municipal, 
District,  Territorial,  or  insular  officer  or  official  acting  within  the  scope 
of  his  official  duties. 

"Sec.  5.  That  the  duplicate-order  forms  and  the  prescriptions  re- 
quired to  be  preserved  under  the  provisions  of  Section  2  of  this  Act, 
and  the  statements  or  returns  filed  in  the  office  of  the  collector  of  the 
district,  under  the  provisions  of  Section  3  of  this  Act,  shall  be  open  to 
inspection  by  officers,  agents,  and  employees  of  the  Treasury  Depart- 
ment duly  authorized  for  that  purpose;  and  such  officials  of  any  State 
or  Territory,  or  of  any  organized  municipality  therein,  or  of  the  District 
of  Columbia,  or  any  insular  possession  of  the  United  States,  as  shall 
be  charged  with  the  enforcement  of  any  law  or  municipal  ordinance 
regulating  the  sale,  prescribing,  dispensing,  dealing  in,  or  distribution 
of  the  aforesaid  drugs,  Each  collector  of  internal  revenue  is  hereby 
authorized  to  furnish,  upon  written  request,  certified  copies  of  any  of 
the  said  statements  or  returns  filed  in  his  office  to  any  of  such  officials 
of  any  State  or  Territory  or  organized  municipality  therein,  or  the 
District  of  Columbia,  or  any  insular  possession  of  the  United  States, 
as  shall  be  entitled  to  inspect  the  said  statements  or  returns  filed  in 
the  office  of  the  said  collector,  upon  the  payment  of  a  tee  of  $1  for  each 
one  hundred  words  or  fraction  thereof  in  the  copy  or  copies  so  re- 
quested. Any  person  who  shall  disclose  the  information  contained  in 
the  said  statements  or  returns  or  in  the  said  duplicate-order  forms, 
except  as  herein  expressly  provided,  and  except  for  the  purpose  of  en- 
forcing the  provisions  of  this  Act,  or  for  the  purpose  of  enforcing  any 
law  of  any  State  or  Territory  or  the  District  of  Columbia,  or  any  in- 
sular possession  of  the  United  States,  or  ordinance  of  any  organized 
municipality  therein,  regulating  the  sale,  prescribing,  dispensing,  deal- 
ing in,  or  distribution  of  the  aforesaid  drugs,  shall  on  conviction,  be 


Offenses  Against  Foreign  &  Interstate  Commerce.  469 

fined  or  imprisoned  as  provided  by  Section  9  of  this  Act.  And  col- 
lectors of  internal  revenue  are  hereby  authorized  to  furnish  upon  writ- 
ten request,  to  any  person,  a  certified  copy  of  the  names  of  any  or  all 
persons  who  may  be  listed  in  their  respective  collection  districts  as 
special-tax  payers  under  the  provisions  of  this  Act,  upon  payment  of 
a  fee  of  $1  for  each  one  hundred  names  or  fraction  thereon  in  the  copy 
so  requested. 

"Sec.  6.  That  the  provisions  of  this  Act  shall  not  be  construed  to 
apply  to  the  sale,  distribution,  giving  away,  dispensing,  or  possession 
of  preparations  and  remedies  which  do  not  contain  more  than  two 
grains  of  opium,  or  more  than  one-fourth  of  a  grain  of  morphine,  or 
more  than  one-eighth  of  a  grain  of  heroin,  or  more  than  one  grain  o? 
codeine,  or  any  salt  or  derivative  of  any  of  them  in  one  fluid  ounce, 
or,  if  a  solid  or  semi-solid  preparation,  in  one  avoirdupois  ounce;  or 
to  liniments,  ointments,  or  other  preparations  which  are  prepared  for 
external  use  only;  except  liniments,  ointments,  and  other  preparations 
which  contain  cocaine  or  any  of  its  salts  or  alpha  or  beta  eucaine  or 
any  of  their  salts  or  any  synthetic  substituted  for  them:  Provided, 
that  such  remedies  and  preparations  are  sold,  distributed,  given  away, 
dispensed,  or  possessed  as  medicines  and  not  for  the  purpose  of  evad- 
ing the  intentions  and  provisions  of  this  Act.  The  provisions  of  this 
Act  shall  not  apply  to  decocainized  cocoa  leaves  or  preparations  made 
therefrom,  or  to  other  preparations  of  cocoa  leaves  which  do  not  con- 
tain cocaine. 

"Sec.  7.  That  all  laws  relating  to  the  assessment,  collection,  remis- 
sion, and  refund  of  internal-revenue  taxes,  including  Section  3229  of 
the  Revised  Statutes  of  the  United  States,  so  far  as  applicable  to  and 
not  inconsistent  with  the  provisions  of  this  Act,  are  hereby  extended 
and  made  applicable  to  the  special  taxes  imposed  by  this  Act. 

"Sec.  8.  That  it  shall  be  unlawful  for  any  person  not  registered 
under  the  provisions  of  this  Act,  and  who  has  not  paid  the  special  tax 
provided  for  by  this  Act,  to  have  in  his  possession  or  under  his  control 
any  of  the  aforesaid  drugs;  and  such  possession  or  control  shall  be 
presumptive  evidence  of  a  violation  of  this  section,  and  also  of  a  viola- 
tion of  the  provisions  of  Section  1  of  this  Act:  Provided,  That  this 
section  shall  not  apply  to  any  employee  of  a  registered  person,  or  to 
a  nurse  under  the  supervision  of  a  physician,  dentist,  or  veterinary 
surgeon  registered  under  this  Act,  having  such  possession  or  control 
by  virtue  of  his  employment  or  occupation  and  not  on  his  own  account; 
or  to  the  possession  of  any  of  the  aforesaid  drugs  which  has  or  have 
been  prescribed  in  good  faith  by  a  physician,  dentist,  or  veter'nary 
surgeon  registered  under  this  Act;  or  to  any  United  States,  State, 
county,  municipal,  District,  Territorial,  or  insular  officer  or  official  who 
has  possession  of  any  said  drugs,  by  reason  of  his  official  duties,  or  to 
a  warehouseman  holding  possession  for  a  person  registered  and  who 
has  paid  the  taxes  under  this  Act;  or  to  common  carriers  engaged  in 
transporting  such  drugs:  Provided,  further,  that  it  shall  not  be 
necessary  to  negative  any  of  the  aforesaid  exemptions  .-n  any  complaint. 


470  Federal  Criminal  Law  Procedure. 

information,  indictment,  or  other  writ  or  proceeding  laid  or  brought 
under  this  Act;  and  the  burden  of  proof  of  any  such  exemption  shall 
be  upon  the  defendant. 

"Sec.  9.  That  any  person  who  violates  or  fails  to  comply  with  any 
of  the  requirements  of  this  Act  shall,  on  conviction,  be  fined  not  more 
than  $2,000  or  be  imprisoned  not  more  than  five  years,  or  both,  in  the 
discretion  of  the  Court. 

"Sec.  10.  That  the  Commissioner  of  Internal  Revenue,  with  the 
approval  of  the  Secretary  of  the  Treasury,  is  authorized  to  appoint  such 
agents,  deputy  collectors,  inspectors,  chemists,  assistant  chemists, 
clerks,  and  messengers  in  the  field  and  in  the  Bureau  of  Internal 
Revenue  in  the  District  of  Columbia,  as  may  be  necessary  to  enforce 
the  provisions  of  this  Act. 

"Sec.  11.  That  the  sum  of  $150,000,  or  so  much  thereof  as  may  be 
necessary,  be,  and  hereby  is,  appropriated,  out  of  any  moneys  in  the 
Treasury  not  otherwise  appropriated,  for  the  purpose  of  carrying  into 
effect  the  provisions  of  this  Act. 

"Sec.  12.  That  nothing  contained  in  this  Act  shall  be  construed  to 
impair,  alter,  amend,  or  repeal  any  of  the  provisions  of  the  Act  of 
Congress  approved  June  30,  1906,  entitled  'An  Act  for  preventing  the 
manufacture,  sale,  or  transportation  of  adulterated  or  misbranded,  or 
poisonous,  or  deleterious  foods,  drugs,  medicines,  and  liquors,  and  for 
regulating  traffic  therein,  and  for  other  purposes;'  and  any  amendment 
thereof,  or  of  the  Act  approved  February  9,  1909,  entitled  'An  Act  to 
prohibit  the  importation  and  use  of  opium  for  other  than  medicinal 
purposes,'    and  any  amendment  thereof." 

The  severity  of  the  punishment  for  the  acts  that  appear 
to  become  crimes  from  a  casual  study  of  the  above  stat- 
ute causes  me  to  doubt  that  the  congress  ever  intended 
to  punish  anyone  save  the  dealer.  In  other  words,  one 
who  has  in  his  possession  the  prohibited  sedative  for  his 
own  use  manifestly  ought  not  to  become  a  felon,  and 
manifestly  ought  not  to  suffer  the  severe  punishment 
prescribed  by  the  statute.  Judge  Bourguin  of  the  Mon- 
tana district,  in  the  case  of  U.  S.  vs.  Woods,  224  Fed.  278, 
expresses  views  in  line  with  this  thought,  and  said,  in 
substance,  that  any  person  convicted  of  the  most  trivial 
violation  of  the  statute,  though  fined  but  one  dollar  there- 
under, is  made  a  felon  and  infamous,  and  for  this  mere 
legal  infraction,  which  is  not  in  fact  a  true  crime,  a  con- 
sequence shockingly  disproportionate  to  the  offense  fol- 
lows, and  such  a  construction  of  the  statute  is  therefore 
antagonistic  to  sound  criminal  economics  and  is  abhor- 
rent to  justice.     It  is  a  corollary  of  criminal  law  that 


Offenses  Against  Foreign  &  Interstate  Commerce.  471 

whenever  an  offense  can  be  committed  by  only  certain 
classes  of  persons,  the  indictment  must  expressly  allege 
that  the  accused  is  of  those  classes,  or  it  is  fatally  de- 
fective in  substance.    U.  S.  vs.  Woods,  224  Fed.  280. 

So  in  the  case  of  U.  S.  vs.  Friedman,  224  Fed.  277, 
which  was  a  prosecution  against  a  physician  for  prescrib- 
ing the  prohibited  drugs  in  quantites  more  than  was 
necessary  to  meet  the  needs  of  a  patient,  and  that  they 
were  not  distributed,  dispensed  and  prescribed  in  good 
faith  as  a  medicine,  the  court  sustained  a  demurrer  on 
the  ground  that  the  statute  does  not  in  fact  limit  the 
amount  of  the  drugs  a. physician  may  prescribe. 

In  U.  S.  vs.  Brown,  224  Fed.  135,'  it  was  held  that  the 
court  will  take  judicial  notice  of  the  fact  that  opium  is 
not  grown  or  produced  in  the  United  States.  In  the 
same  case  the  court  held  the  act  of  December  17,  1914 
providing  for  the  registration  with  collectors  of  internal 
revenue  of  dealers  in  opium,  and  imposing  a  tax  on  deal- 
ers and  making  it  unlawful  for  any  person  who  has  not 
registered  and  paid  the  tax,  to  have  in  his  possession  any 
opium  or  derivative  thereof,  and  providing  that  such 
possession  shall  be  presumptive  evidence  of  a  violation 
of  the  act,  constitutional. 

Returning  again  to  the  Act  under  consideration,  it 
seems  very  clear  that  there  is  nothing  in  the  Act  im- 
posing the  duty  of  registration  and  the  payment  of  taxes 
upon  mere  consumers  of  the  drugs.  They  are  not  within 
Section  1,  and  Section  8  does  not  purport  to  extend  the 
registration  and  taxation  features  of  the  act  to  them. 

§  271f.  Interstate  Commerce.  Regulation  Thereof. — 
The  Act  of  February  4,  1887,  24th  Statute  at  Large,  379, 
page  809,  Third  Volume  Federal  Statutes,  Annotated, 
comprises  certain  regulations  for  the  common  carriers  of 
interstate  traffic. 

Section  1  provides  that  the  Act  shall  apply  to  any  com- 
mon carrier  engaged  in  the  transportation  of  passengers 
or  property,  wholly  by  railroad  or  partly  by  railroad  and 
partly  by  water,  and  provides  that  all  charges  shall  be 
reasonable  and  just.    It  also  defines  the  word  Railroad. 

Section  2  provides  for  special  rates,  and  prohibits  re- 
bates in  any  way,  directly  or  indirectly. 


472  Federal  Criminal  Law  Procedure. 

Section  3  inhibits  undue  preferences,  and  guarantees 
equal  facilities  to  connecting"  lines. 

Section  4  allows  certain  exceptions  in  long  and  short 
haul  charges. 

Section  5  prohibits  pooling  agreements. 

Section  6  provides  that  printed  schedules  of  rates  shall 
be  lasted,  as  shall  also  notice  of  advances  and  reduction 
be  given,  provides  for  joint  rate  tariffs,  and  punishes 
failure  to  file  schedules. 

Section  7  provides  combinations  to  prevent  continuous 
carriage  of  freight  to  destination. 

Section  8  defines  a  liability  to  persons  who  are  injured 
by  violation  of  the  Act. 

Section  9  provides  that  persons  damaged  may  complain 
to  the  commission  or  may  personally  sue. 

Section  10  thereof  provides  as  follows: 

"(Punishment  for  violation  or  evasion  of  the  Act.)  That  any  com- 
mon carrier  subject  to  the  provisions  of  this  Act,  or,  whenever  such 
carrier  is  a  corporation,  any  director,  or  officer  thereof,  or  any  re- 
ceiver or  trustee,  lessee,  agent  or  person  acting  for  or  employed  by 
such  corporation,  company,  person,  or  party,  shall  wilfully  do  or  cause 
to  be  done,  or  shall  willingly  suffer  or  permit  to  de  done,  any  act, 
matter,  or  thing  in  this  Act  prohibited  or  declared  to  be  unlawful,  or 
who  shall  aid  or  abet  therein,  or  shall  willfully  omit  or  fail  to  do  any 
act,  matter,  or  thing  in  this  Act  required  to  be  done,  or  shall  cause  or 
willingly  suffer  or  permit  any  act,  matter,  or  thing  so  directed  or  re- 
quired by  this  Act  to  be  done  not  to  be  so  done,  or  shall  aid  or  abet  any 
such  omission  or  failure,  or  shall  be  guilty  of  any  infraction  of  this 
Act,  or  shall  aid  or  abet  therein,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  shall,  upon  conviction  thereof  in  any  District  Court  of  the 
United  States  within  the  jurisdiction  of  which  such  offense  was  com 
mitted,  be  subject  to  a  fine  of  not  to  exceed  five  thousand  dollars  for 
each  offense:  Provided,  that  if  the  offense  for  which  any  person  shall 
be  convicted  as  aforesaid  shall  be  an  unlawful  discriminating  in  rates, 
fares,  or  charges,  for  the  transportation  of  passengers  or  property,  such 
person  shall,  in  addition  to  the  fine  hereinbefore  provided  for,  be  liable 
to  imprisonment  in  the  penitentiary  for  a  term  of  not  exceeding  two 
years,  or  both  such  fine  and  imprisonment,  in  the  discretion  of  the 
Court. 

"Any  common  carrier  subject  to  the  provisions  of  this  Act,  or,  when- 
ever such  common  carrier  is  a  corporation,  any  officer  or  agent  thereof, 
or  any  person  acting  for  or  employed  by  such  corporation,  who,  by 
means  of  false  billing,  false  classification,  false  weighing,  or  false  re- 
port of  weight,  or  by  any  other  device  or  means,  shall  knowingly  or 


Offenses  Against  Foreign  &  Interstate  Commerce.  473 

willfully  assist,  or  shall  willingly  suffer  or  permit,  any  person  or  per- 
sons to  obtain  transportation  for  property  at  less  than  the  regular 
rates  then  established  and  in  force  on  the  line  of  transportation  of  such 
common  carrier,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall, 
upon  conviction  thereof  in  any  Court  of  the  United  States  of  com- 
petent jurisdiction  within  the  district  in  which  such  offense  was  com- 
mitted, be  subject  to  a  fine  of  not  exceeding  five  thousand  dollars,  or 
imprisonment  in  the  penitentiary  for  a  term  of  not  exoeeding  two 
years,  or  both,  in  the  discretion  of  the  Court  for  each  offense. 

"Any  person  and  any  officer  or  agent  of  any  corporation  or  company 
who  shall  deliver  property  for  transportation  to  any  common  carrier, 
subject  to  tbe  provisions  of  this  Act,  or  for  whom  as  consignor  or 
consignee  any  such  carrier  shall  transport  property,  who  shall  know- 
ingly and  willfully,  by  false  billing,  false  classification,  false  weighing, 
false  representation  of  the  contents  of  the  package,  or  false  report  of 
weight,  or  by  any  other  device  or  means,  whether  with  or  without  the 
consent  or  connivance  of  the  carrier,  its  agent  or  agents,  obtain  trans- 
portation for  such  property  at  less  than  the  regular  rates  then  estab- 
lished and  in  force  on  the  line  of  transportation,  shall  be  deemed  guilty 
of  fraud,  which  is  hereby  declared  to  be  a  misdemeanor,  and  shall, 
upon  conviction  thereof  in  any  Court  of  the  United  States  of  competent 
jurisdiction  within  the  district  in  which  such  offense  was  committed,  be 
subject  for  each  offense  to  a  fine  of  not  exceeding  five  thousand  dol- 
lars or  imprisonment  in  the  penitentiary  for  a  term  of  not  exceeding 
two  years,  or  both,  in  the  discretion  of  the  Court. 

"If  any  such  person,  or  any  officer  or  agent  of  any  such  corporation  or 
company,  shall,  by  payment  of  money  or  other  thing  of  value,  solicita- 
tion, or  otherwise,  induce  any  common  carrier  subject  to  the  provisions 
of  this  Act,  or  any  of  its  officers  or  agents,  to  discriminate  unjustly  in 
his,  its,  or  their  favor  as  against  any  other  consignor  or  consignee 
in  the  transportation  of  property,  or  shall  aid  or  abet  any  common 
carrier  in  any  such  unjust  discrimination,  such  person,  or  such  officer 
or  agent  of  such  corporation  or  company,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall,  upon  conviction  thereof  in  any  Court  of  the 
United  States  of  competent  jurisdiction  within  the  districts  within 
which  such  offense  was  committed,  be  subject  to  a  fine  of  not  exceed- 
ing five  thousand  dollars,  or  imprisonment  in  the  penitentiary  for  a 
term  of  not  exceeding  two  years,  or  both,  in  the  discretion  of  the 
Court,  for  each  offense;  and  such  person,  corporation,  or  company 
shall  also,  together  with  said  common  carrier,  be  liable,  jointly  or 
severally,  in  an  action  on  the  case  to  be  brought  by  any  consignor  or 
consignee  discriminated  against  in  any  Court  of  the  United  States  of 
competent  jurisdiction  for  all  damages  caused  by  or  resulting  there- 
from.     (25   Stat.  L.,   857.)" 

Section  11  provides  for  the  creation  of  an  interstate 
commerce  commission. 


474  Federal  Criminal  Law  Procedure. 

Section  12  defines  the  scope  of  the  commission,  pro- 
vides for  prosecution  of  proceedings,  the  attendance  of 
witnesses,  depositions,  and  self-incriminating  testimony. 

Section  13  provides  for  petitions  as  to  violations  of  law, 
notice  to  carrier  of  charges  filed,  and  for  investigations. 

Section  14  provides  for  written  reports  of  investiga- 
tions, and  that  such  reports  and  decisions  may  be  printed 
and  distributed. 

Section  15  provides  for  notice  to  the  carrier  of  viola- 
tions and  for  making  of  a  record  of  compliance  with  the 
report. 

Section  16  frames  a  procedure  in  case  of  refusal  to 
obey  the  commission,  provides  for  remedies,  jury  trials, 
appeals,  and  costs. 

Section  17  provides  for  proceedings  of  commission, 
rules,  quorums,  appearances,  records,  seal,  oaths  and  sub- 
poenaes. 

Section  19  fixes  the  salaries,  provides  for  witness  fees. 

Section  19  fixes  the  office  and  place  of  business  at  Wash- 
ington, and  allows  the  commission  to  hold  special  ses- 
sions in  any  part  of  the  United  States. 

Section  22  provides  for  free  carriage  and  reduced  rates 
to  certain  corporations  and  persons. 


CHAPTER  XIIA 

INTOXICATING   LIQUOR. 

§  1100.  Historical. 

1101.  Reed  Act. 

1102.  Decisions  under  Reed   Act. 

1103.  Volstead  Act  and  Constitutional   Amendment  18. 

1104.  Decisions  under   Different   Provisions   of  the  Volstead   Act. 

1105.  Volstead  Act  Repeals  some  of  Revenue  Laws. 

1106.  Decisions  Continued. 

1107.  Opium,  or  Cocoa   Leaves,  and   Salts,   Derivatives   or   Prepara- 
tions,  Continued. 

1108.  Narcotic  Decisions. 

Sec.  1100.     Historical. 

The  Webb-Kenyon  Act  of  Mar.  1,  1913,  Compiled  Stat- 
utes 1916,  Sec.  8739,  was  the  beginning  of  the  undoing 
of  the  right  of  interstate  commerce  to  protect  the  in- 
troduction of  intoxicating  liquors  into  non-wishing  states. 

In  1917  came  the  Reed  amendment  and  later  in  the 
same  year  the  wartime  legislation  for  the  protection  of 
the  nations  soldiers  and  their  concentration  points.  Then 
the  Eighteenth  Amendment  to  the  Constitution  was 
adopted  and  its  adoption  was  quickly  followed  by  the 
Volstead  Act,  of  October  28,  1919. 

Sec.  1101.  The  Reed  Act:  "Whoever  shall  order, 
purchase,  or  cause  intoxicating  liquors  to  be  trans- 
ported in  interstate  commerce,  except  for  scientific,  sac- 
ramental, medicinal,  and  mechanical  purposes,  into  any 
state  or  territorv,  the  laws  of  which  state  or  territorv 
prohibit  the  manufacture,  or  sale  therein  of  intoxicating 
liquors  for  beverage  purposes  shall  be  punished  as  afore- 
said, provided,  that  nothing  therein  shall  authorize  the 
shipment  of  liquor  into  any  state  contrary  to  the  laws 
of  such  state." 

The  punishment  is  by  fine  of  not  exceeding  a  thousand 
dollars  or  imprisonment  not  more  than  six  months  or 
both,  and  for  any  subsequent  offense  imprisonment  not 
more  than  one  year. 

Sec.  1102.     Decisions  Under  Reed  Act. 

Berryman  vs.  U.  S.,  259  F.  208;  Laughter  vs.  U.  S., 
259  F.  94;  Preyer  vs.  U.  S.,  260  F.  157;  U.  S.  vs.  Collins, 
264  F.  380;    Durst  vs.  U.  S.,  266  F.  65;    ex  parte  West- 

(475) 


476  Federal  Criminal  Law  Procedure. 

brook,  250  F.  637;  U.  S.  vs.  Collins,  254  F.  869;  U.  S. 
vs.  Gudger,  U.  S.  Sup.  Ct.  Rep.  Apr.  1919;  U.  S.  vs.  Hill, 
U.  S.  Sup.  Ct.  Jan.  1919;  U.  S.  vs.  Simpson,  40.  Sup. 
Ct.  364;  U.  S.  vs.  James,  256  F.  102. 

Sec.  1103.  Volstead  Act  and  Constitutional  Amend- 
ment Eighteen. 

In  1918  the  Eighteenth  Amendment  to  the  Constitution 
was  adopted,  such  adoption  being  proclaimed  on  the  29th 
of  January,  1919,  the  article  is  as  follows: — 

"Sec.  1.  After  one  year  from  the  ratification  of  this 
Article  the  manufacture,  sale,  or  transportation  of  in- 
toxicating liquors  within,  the  importation  thereof  into, 
or  the  exportation  thereof  from  the  United  States  and 
all  territory  subject  to  the  jurisdiction  thereof  for  bev- 
erage purposes  is  hereby  prohibited. 

Sec.  2,  The  congress  and  the  several  states  shall  have 
concurrent  power  to  enforce  this  Article  by  appropriate 
legislation     .     .     ." 

Then  Congress  passed  the  Volstead  Act,  as  follows:— 

Title  II. 

Prohibition  of  Intoxicating  Beverages. 

Sec.  1.  (Terms  defined — authority  of  assistants  to 
commissioner.)  When  used  in  Title  II  and  Title  III  of 
this  Act  (1)  The  word  "liquor"  or  the  phrase  "intoxi- 
cating liquor"  shall  be  construed  to  include  alcohol,  bran- 
dy, whisky,  rum,  gin,  beer,  ale,  porter,  and  wine,  and  in 
addition  thereto  any  spirituous,  vinous,  malt,  or  fer- 
mented liquor,  liquids,  and  compounds,  whether  medi- 
cated, proprietary,  patented,  or  not,  and  by  whatever 
name  called,  containing  one-half  of  1  per  centum  or  more 
of  alcohol  by  volume  which  are  fit  for  use  for  beverage 
purposes:  Provided,  That  the  foregoing  definition  shall 
not  extend  to  dealcoholized  wine  nor  to  any  beverage  or 
liquid  produced  by  the  process  by  which  beer,  ale,  porter 
or  wine  is  produced,  if  it  contains  less  than  one-half  of  1 
per  centum  of  alcohol  by  volume,  and  is  made  as  pre- 
scribed in  section  37  of  this  title,  and  is  otherwise  de- 
nominated than  as  beer,  ale,  or  porter,  and  is  contained 
and  sold  in,  or  from,  such  sealed  and  labeled  bottles, 


Intoxicating  Liquors.  477 

casks  or  containers  as  the  commissioner  may  by  regula- 
tion prescribe. 

(2)  The  word  "person"  shall  mean  and  include  nat- 
ural persons,  associations,  copartnerships,  and  corpora- 
tions. 

(3)  The  word  "commissioner"  shall  mean  Commis- 
sioner of  Internal  Revenue. 

(4)  The  term  "application'1  shall  mean  a  formal 
written  request  supported  by  a  verified  statement  of 
facts  showing  that  the  commissioner  may  grant  the  re- 
quest. 

(5)  The  term  "permit"  shall  mean  a  formal  written 
authorization  by  the  commissioner  setting  forth  specifical- 
ly therein  the  things  that  are  authorized. 

(6)  The  term  "bond"  shall  mean  an  obligation  au- 
thorized or  required  by  or  under  this  act  or  any  regula- 
tion, executed  in  such  form  and  for  such  a  penal  sum 
as  may  be  required  by  a  court,  the  commissioner  or  pre- 
scribed by  regulation. 

(7)  The  term  "regulation"  shall  mean  any  regulation 
prescribed  by  the  commissioner  with  the  approval  of 
the  Secretary  of  the  Treasury  for  carrying  out  the  pro- 
visions of  this  Act,  and  the  commissioner  is  authorized 
to  make  such  regulations. 

Any  act  authorized  to  be  clone  by  the  commissioner 
may  be  performed  by  any  assistant  or  agent  designated 
by  him  for  that  purpose.  Records  required  to  be  filed 
with  the  commissioner  may  be  filed  with  an  assistant 
commissioner  or  other  person  designated  by  the  commis- 
sioner to  receive  such  record.     (41  Stat.  L.  307.) 

Sec.  2.  (Investigation  and  report  of  violation  of  act — 
Commissioner  of  Internal  Revenue — apprehension  of  of- 
fenders— prosecution — search  warrants.)  The  Commis- 
sioner of  Internal  Revenue,  his  assistants,  agents,  and 
inspectors  shall  investigate  and  report  violations  of  this 
Act  to  the  United  States  attorney  for  the  district  in 
which  committed,  who  is  hereby  charged  with  the  duty 
of  prosecuting  the  offenders,  subject  to  the  direction  of 
the  Attorney  General,  as  in  the  case  of  other  offenses 
against  the  laws  of  the  United  States;  and  such  Commis- 
sioner of  Internal  Revenue,  his  assistants,  agents,  and 


478  Federal  Criminal  Law  Procedure. 

inspectors  may  swear  out  warrants  before  United  States 
commissioners  or  other  officers  or  courts  authorized  to 
issue  the  same  for  the  apprehension  of  such  offenders, 
and  may,  subject  to  the  control  of  the  said  United  States 
attorney,  conduct  the  prosecution  at  the  committing  trial 
for  the  purpose  of  having  the  offenders  held  for  the 
action  of  a  grand  jury.  Section  1014  of  the  Revised  Stat- 
utes of  the  United  States  is  hereby  made  applicable  in 
the  enforcement  of  this  Act.  Officers  mentioned  in  said 
section  1014  are  authorized  to  issue  search  warrants  un- 
der the  limitations  provided  in  Title  XI  of  the  Act  ap- 
proved June  15,  1917  (Fortieth  Statutes  at  Large,  page 
217,  et  seq.)     (41  Stat.  L.  308.) 

For  R.  S.  sec.  1014,  see  2  Fed.  Stat.  Ann.  (2d  ed.)  654; 
2  Fed.  Stat.  Ann.  (1st  ed.)  321. 

For  Act  of  June  15,  1917,  title  XI,  mentioned  in  the 
text,  see  1918  Supp.  Fed.  Stat.  Ann.  128. 

Sec.  3.  (Application  of  Act  to  Eighteenth  Amendment 
of  Constitution — liquor  for  nonbeverage  purposes — wine 
for  sacramental  purposes — warehouse  receipts.)  No  per- 
sons shall  on  or  after  the  date  when  the  eighteenth 
amendment  to  the  Constitution  of  the  United  States  goes 
into  effect,  manufacture,  sell,  barter,  transport,  import, 
export,  deliver,  furnish  or  possess  any  intoxicating  liq- 
uor except  as  authorized  in  this  Act,  and  all  provisions 
of  this  Act  shall  be  liberally  construed  to  the  end  that 
the  use  of  intoxicating  liquor  as  a  beverage  may  be  pre- 
vented. 

Liquor  for  nonbeverage  purposes  and  wine  for  sacra- 
mental purposes  may  be  manufactured,  purchased,  sold, 
bartered,  transported,  imported,  exported,  delivered,  fur- 
nished and  possessed,  but  only  as  herein  provided,  and 
the  commissioner  mayTlrjxm^^ 

therefor:  Provided,  That  nothing  in  this  Act  shallpro- 
liibit  the  purchase  and  sale  of  warehouse  receipts  cover- 
ing distilled  spirits  on  deposit  in  Government  bonded 
warehouses,  and  no  special  tax  liability  shall  attach  to 
the  business  of  purchasing  and  selling  such  warehouse 
receipts.     (41  Stat.  L.  308.) 

The  Eighteenth  Amendment  to  the  Constitution  is  set 
out  infra.    See  Index. 


Intoxicating  Liquors.  479 

Sec.  4.  (Enumeration  of  certain  articles  not  affected 
by  act — permit  to  manufacture — sale  of  articles — use  for 
beverage  purposes.)  The  articles  enumerated  in  this 
section  shall  not,  after  having  been  manufactured  and 
prepared  for  the  market,  be  subject  to  the  provisions  of 
this  Act  if  they  correspond  with  the  following  descrip- 
tions and  limitations,  namely: 

(a)  Denatured  alcohol  or  denatured  rum  produced  and 
and  used  as  provided  by  laws  and  regulations  now  or 
hereafter  in  force. 

(b)  Medicinal  preparations  manufactured  in  accord- 
ance with  formulas  prescribed  by  the  United  States 
Pharmacopoeia,  National  Formulary  or  the  American 
Institute  of  Homeopathy  that  are  unfit  for  use  for  bev- 
erage purposes. 

(c)  Patented,  patent,  and  proprietary  medicines  that 
are  unfit  for  use  for  beverage  purposes. 

(d)  Toilet,  medicinal,  and  antiseptic  preparations  and 
solutions  that  are  unfit  for  use  for  beverage  purposes. 

(e)  Flavoring  extracts  and  sirups  that  are  unfit  for 
use  as  a  beverage,  or  for  intoxicating  beverage  purposes. 

(f)  Vinegar  and  preserved  sweet  cider. 

A  person  who  manufactures  any  of  the  articles  men- 
tioned in  this  section  may  purchase  and  possess  liquor 
for  that  purpose,  but  he  shall  secure  permits  to  manu- 
facture such  articles  and  to  purchase  such  liquor,  give  the 
bonds,  keep  the  records,  and  make  the  reports  specified 
in  this  Act  and  as  directed  by  the  commissioner.  No 
such  manufacturer  shall  sell,  use,  or  dispose  of  any  liquor 
otherwise  than  as  an  ingredient  of  the  articles  authorized 
to  be  manufactured  therefrom.  No  more  alcohol  shall 
be  used  in  the  manufacture  of  any  extract,  sirup  or  the 
articles  named  in  paragraphs  b.  c.  and  d.  of  this  section 
which  may  be  used  for  beverage  purposes  than  the  quan- 
titv  necessarv  for  extraction  or  solution  of  the  elements 
contained  therein  and  for  the  preservation  of  the  article. 

Any  person  who  shall  knowingly  sell  any  of  the  articles 
mentioned  in  paragraphs  a,  b,  c,.  and  d  of  this  section 
for  beverage  purposes,  or  any  extract  or  sirup  for  in- 
toxicating beverage  purposes,  or  who  shall  sell  any  of 


480  Federal  Criminal  Law  Procedure. 

the  same  under  circumstances  from  which  the  seller 
might  reasonably  deduce  the  intention  of  the  purchaser 
to  use  them  for  such  purposes,  or  shall  sell  any  beverage 
containing  one-half  of  1  per  centum  or  more  of  alcohol 
by  volume  in  which  any  extract,  sirup,  or  other  article  is 
used  as  an  ingredient,  shall  be  subject  to  the  penalties 
provided  in  section  29  of  this  Title.  If  the  commissioner 
shall  find,  after  notice  and  hearing  as  provided  for  in 
section  5,  of  this  Title,  that  any  person  has  sold  any  flav- 
oring extract,  sirup,  or  beverage  in  violation  of  this  para- 
graph, he  shall  notify  such  person,  and  any  known  prin- 
cipal for  whom  the  sale  was  made,  to  desist  from  selling 
such  article;  and  it  .shall  thereupon  be  unlawful  for  a 
period  of  one  year  thereafter  for  any  person  so  notified  to 
sell  any  such  extract,  sirup,  or  beverage  without  making 
an  application  for,  giving  a  bond,  and  obtaining  a  permit 
so  to  do,  which  permit  may  be  issued  upon  such  condi- 
tions as  the  commissioner  may  deem  necessary  to  prevent 
such  illegal  sales,  and  in  addition  the  commissioner  shall 
require  a  record  and  report  of  sales.     (41  Stat.  L.  309.) 

Sec.  5.  (Failure  of  enumerated  articles  to  conform  to 
descriptions — analysis — revocation  of  permit.)  When- 
ever the  commissioner  has  reason  to  believe  that  any 
article  mentioned  in  section  4  does  not  correspond  with 
the  descriptions  and  limitations  therein  provided,  he 
shall  cause  an  analysis  of  said  article  to  be  made,  and  if, 
upon  such  analysis,  the  commissioner  shall  find  that  said 
article  does  not  so  correspond,  he  shall  give  not  less  than 
fifteen  days'  notice  in  writing  to  the  person  who  is  the 
manufacturer  thereof  to  show  cause  why  said  article 
should  not  be  dealt  with  as  an  intoxicating  liquor,  such 
notice  to  be  served  personally  or  by  registered  mail,  as 
the  commissioner  may  determine  and  shall  specify  the 
time  when,  the  place  where,  and  the  name  of  the  agent  or 
official  before  whom  such  person  is  required  to  appear. 

If  the  manufacturer  of  said  article  fails  to  show  to  the 
satisfaction  of  the  commissioner  that  the  article  corre- 
sponds to  the  descriptions  and  limitations  provided  in 
section  4  of  this  Title,  his  permit  to  manufacture  and 
sell  such  article  shall  be  revoked.    The  manufacturer  may 


Intoxicating  Liquors.  481 

by  appropriate  proceeding  in  a  court  of  equity  have  the 
action  of  the  commissioner  reviewed,  and  the  court  may 
affirm,  modify,  or  reverse  the  finding  of  the  commissioner 
as  the  facts  and  the  law  of  the  case  mav  warrant,  and 
during  the  pendency  of  such  proceedings  may  restrain 
the  manufacture,  sale,  or  other  disposition  of  such  article. 
(41  Stat.  L.  309.) 

Sec.  6.  (Permits  to  manufacture,  etc.,  liquor.)  No  one 
shall  manufacture,  sell,  purchase,  transport,  or  prescribe 
any  liquor  without  first  obtaining  a  permit  from  the  com- 
missioner so  to  do,  except  that  a  person  may,  without 
a  permit,  purchase  and  use  liquor  for  medicinal  purposes 
when  prescribed  by  a  physician  as  herein  provided,  and 
except  that  any  prson  who  is  in  the  opinion  of  the  com- 
missioner is  conducting  a  bona  fide  hospital  or  sanatorium 
engaged  in  the  treatment  of  persons  suffering  from  al- 
coholism, may,  under  such  rules,  regulations,  and  condi- 
tions, as  the  commissioner  shall  prescribe,  purchase  and 
use,  in  accordance  with  the  methods  in  use  in  such  in- 
stitution, liquor  to  be  administered  to  the  patients  of  such 
institution  under  the  direction  of  a  duly  qualified  phy- 
sician employed  by  such  institution. 

All  permits  to  manufacture,  prescribe,  sell  or  trans- 
port liquor,  may  be  issued  for  one  year,  and  shall  expire 
on  the  31st  day  of  December  next  succeeding  the  issuance 
thereof:  Provided,  That  the  commissioner  may  without 
formal  application  or  new  bond  extend  any  permit  granted 
under  this  Act  or  laws  now  in  force  after  August  31  in 
any  year  to  December  31  of  the  succeeding  year;  Pro- 
vided further,  That  permits  to  purchase  liquor  for  the 
purpose  of  manufacturing  or  selling  as  provided  in  this 
Act  shall  not  be  in  force  to  exceed  ninety  days  from  the 
day  of  issuance.  A  permit  to  purchase  liquor  for  any 
other  purpose  shall  not  be  in  force  to  exceed  thirty  days. 
Permits  to  purchase  liquor  shall  specify  the  quantity  and 
kind  to  be  purchased  and  the  purpose  for  which  it  is  to 
be  used.  No  permit  shall  be  issued  to  any  person  who 
within  one  year  prior  to  the  application  therefor  or  is- 
suance thereof  shall  have  violated  the  terms  of  any  per- 
mit issued  under  this  Title  or  any  law  of  the  United 

31 


482  Federal  Criminal  Law  Procedure. 

States  or  of  any  State  regulating  traffic  in  liquor.  No 
permit  shall  be  issued  to  anyone  to  sell  liquor  at  re- 
tail, unless  the  sale  is  to  be  made  through  a  pharmacist 
designated  in  the  permit  and  duly  licensed  under  the  laws 
of  his  State  to  compound  and  dispense  medicine  pre- 
scribed by  a  duly  licensed  physician.  No  one  shall  be 
given  a  permit  to  prescribe  liquor  unless  he  is  a  physician 
duly  licensed  to  practice  medicine  and  actively  engaged 
in  the  practice  of  such  profession.  Every  permit  shall  be 
in  writing,  dated  when  issued,  and  signed  by  the  com- 
missioner or  his  authorized  agent.  It  shall  give  the  name 
and  address  of  the  person  to  whom  it  is  issued  and  shall 
designate  and  limit  the  acts  that  are  permitted  and  the 
time  when  and  place  where  such  acts  may  be  performed. 
No  permit  shall  be  issued  until  a  verified,  written  applica- 
tion shall  have  been  made  therefor,  -setting  forth  the 
qualification  of  the  applicant  and  the  purpose  for  which 
the  liquor  is  to  be  used. 

The  commissioner  may  prescribe  the  form  of  all  permits 
and  applications  and  the  facts  to  be  set  forth  therein. 
Before  any  permit  is  granted  the  commissioner  may  re- 
quire a  bond  in  such  form  and  amount  as  he  may  pre- 
scribe to  insure  compliance  with  the  terms  of  the  permit 
and  the  provisions  of  this  title.  In  the  event  of  the  re- 
fusal by  the  commissioner  of  any  application  for  a  per- 
mit, the  applicant  may  have  a  review  of  his  decision 
before  a  court  of  equity  in  the  manner  provided  in  section 
5  hereof. 

Nothing  in  this  title  shall  be  held  to  apply  to  the 
manufacture,  sale,  transportation,  importation,  posses- 
sion, or  distribution  of  wine  for  sacramental  purposes, 
or  like  religious  rites,  except  section  6  (save  as  the  same 
requires  a  permit  to  purchase)  and  section  10  hereof,  and 
the  provisions  of  this  Act  prescribing  penalties  for  the 
violation  of  either  of  said  sections.  No  person  to  whom 
a  permit  may  be  issued  to  manufacture,  transport,  im- 
port, or  sell  wines  for  sacramental  purposes 

or  like  religious  rites  shall  sell,  barter,  exchange,  or 
furnish  any  such  to  any  person  not  a  rabbi,  minister  of 
the  gospel,  priest,  or  an  officer  duly  authorized  for  the 


Intoxicating  Liquors.  483 

purpose  by  any  church  or  congregation,  nor  to  any  such 
except  upon  an  application  duly  subscribed  by  him,  which 
application,  authenticated  as  regulations  may  prescribe, 
shall  be  filed  and  preserved  by  the  seller.  The  head  of 
any  conference  or  diocese  or  other  ecclesiastical  juris- 
diction may  designate  any  rabbi,  minister,  or  priest  to 
supervise  the  manufacture  of  wine  to  be  used  for  the 
purposes  and  rites  in  this  section  mentioned,  and  the 
person  so  designated  may,  in  the  discretion  of  the  com- 
missioner, be  granted  a  permit  to  supervise  such  manu- 
facture.    (41  Stat.  L.  310.) 

Sec.  7.  (Prescriptions  for  liquors.)  No  one  but  a  phy- 
sician holding  a  permit  to  prescribe  liquor  shall  issue 
any  prescription  for  liquor.  And  no  physician  shall  pre- 
scribe liquor  unless  after  careful  physical  examination 
of  the  person  for  whose  use  such  prescription  is  sought, 
or  if  such  examination  is  found  impracticable,  then  upon 
the  best  information  obtainable,  he  in  good  faith  believes 
that  the  use  of  such  liquor  as  a  medicine  by  such  person 
is  necessary  and  will  afford  relief  to  him  from  some  known 
ailment.  No  more  than  a  pint  of  spirituous  liquor  to  be 
taken  internally  shall  be  prescribed  for  use  by  the  same 
person  within  any  period  of  ten  days  and  no  prescription 
shall  be  rilled  more  than  once.  Any  pharmacist  filling  a 
prescription  shall  at  the  time  indorse  upon  it  over  his 
own  signature  the  word  "canceled,"  together  with  the 
date  when  the  liquor  was  delivered,  and  then  make  the 
same  a  part  of  the  record  that  he  is  required  to  keep  as 
herein  provided. 

Every  physician  who  issues  a  prescription  for  liquor 
shall  keep  a  record  alphabetically  arranged  in  a  book 
prescribed  by  the  commissioner,  who  shall  show  the  date 
of  issue,  amount  prescribed,  to  whom  issued,  the  purpose 
or  ailment  for  which  it  is  to  be  used  and  directions  for 
use,  stating  the  amount  and  frequency  of  the  dose.  (41 
Stat.  L.  311.) 

Sec.  8.  (Prescription  blanks.)  The  commissioner  shall 
cause  to  be  printed  blanks  for  the  prescriptions  herein 
required,  and  he  shall  furnish  the  same,  free  of  cost,  to 
physicians  holding  permits  to  prescribe.     The  prescrip- 


484  Federal  Criminal  Law  Procedure. 

tion  blanks  shall  be  printed  in  book  form  and  shall  be 
numbered  consecutively  from  one  to  one  hundred,  and 
each  book  shall  be  given  a  number,  and  the  stubs  in  each 
book  shall  carry  the  same  number  as  and  be  copies  of 
the  prescriptions.  The  books  containing  such  stubs  shall 
be  returned  to  the  commissioner  when  the  prescription 
blanks  have  been  used,  or  sooner,  if  directed  by  the  com- 
missioner. All  unused,  mutilated,  or  defaced  blanks  shall 
be  returned  with  the  book.  No  physician  shall  prescribe 
and  no  pharmacist  shall  fill  any  prescription  for  liquor 
except  on  blanks  so  provided,  except  in  cases  of  emergen- 
cy, in  which  event  a  record  and  report  shall  be  made  and 
kept  as  in  other  cases.     (41  Stat.  1.  311.) 

Sec.  9.  (Revocation  of  permits.)  If  at  any  time  there 
shall  be  filed  with  the  commissioner  a  complaint  under 
oath  setting  forth  facts  showing,  or  if  the  commissioner 
has  reason  to  believe,  that  any  person  who  has  a  permit 
is  not  in  good  faith  conforming  to  the  provisions  of  this 
Act,  or  has  violated  the  laws  of  any  State  relating  to 
intoxicating  liquor,  the  commissioner  or  his  agent  shall 
immediately  issue  an  order  citing  such  person  to  appear 
before  him  on  a  day  named  not  more  than  thirty  and  not 
less  than  fifteen  days  from  the  date  of  service  upon  such 
permittee  of  a  copy  of  the  citation,  which  citation  shall 
be  accompanied  by  a  copy  of  such  complaint,  or  in  the 
event  that  the  proceedings  be  initiated  by  the  commis- 
sioner with  a  statement  of  the  facts  constituting  the 
violation  charged,  at  which  time  a  hearing  shall  be  had 
unless  continued  for  cause.  Such  hearing  shall  be  held 
within  the  judicial  district  and  within  fifty  miles  of  the 
place  where  the  offense  is  alleged  to  have  occurred,  un- 
less the  parties  agree  on  another  place.  If  it  be  found 
that  such  person  has  been  guilty  of  willfully  violating  any 
such  laws,  as  charged,  or  has  not  in  good  faith  conformed 
to  the  provisions  of  this  Act,  such  permit  shall  be  revoked, 
and  no  permit  shall  be  granted  to  such  person  within  one 
year  thereafter.  Should  the  permit  be  revoked  by  the 
commissioner,  the  permittee  may  have  a  review  of  his 
decision  before  a  court  of  equity  in  the  manner  provided 
in  section  5  hereof.    During  the  pendency  of  such  action 


Intoxicating  Liquoks.  485 

such  permit  shall  be  temporarily  revoked.     (41  Stat.  L. 
311.) 

Sec.  10.  (Record  of  liquor  manufactured,  etc.)  No 
person  shall  manufacture,  purchase  for  sale,  sell,  or  trans- 
port any  liquor  without  making  at  the  time  a  permanent 
record  thereof  showing  in  detail  the  amount  and  kind  of 
liquor  manufactured,  purchased,  sold,  or  transported,  to- 
gether with  the  names  and  addresses  of  the  persons  to 
whom  sold,  in  case  of  sale,  and  the  consignor  and  con- 
signee in  case  of  transportation,  and  the  time  and  place 
of  such  manufacture,  sale,  or  transportation.  The  com- 
missioner may  prescribe  the  form  of  such  record,'  which 
shall  at  all  times  be  open  to  inspection  as  in  this  Act 
provided.     (41  Stat.  L.  312.) 

Sec.  11.  (Copies  of  permits  to  purchase — part  of  rec- 
ords— wholesale  purchases.)  All  manufacturers  and 
wholesale  or  retail  druggists  shall  keep  as  a  part  of  the 
records  required  of  them  a  copy  of  all  permits  to  pur- 
chase on  which  a  sale  of  any  liquor  is  made,  and  no  manu- 
facturer or  wholesale  druggist  shall  sell  or  otherwise  dis- 
pose of  any  liquor  except  at  wholesale  and  only  to  persons 
having  permits  to  purchase  in  such  quantities.  (41  Stat. 
1.  312.) 

Sec.  12.  (Labels  on  liquor  containers.)  All  persons 
manufacturing  liquor  for  sale  under  the  provisions  of  this 
title  shall  securely  and  permanently  attach  to  every  con- 
tainer thereof,  as  the  same  is  manufactured,  a  label  stat- 
ing name  of  manufacturer,  kind  and  quantity  of  liquor 
contained  therein,  and  the  date  of  its  manufacture,  to- 
gether with  the  number  of  the  permit  authorizing  the 
manufacture  thereof;  and  all  persons  possessing  such 
liquor  in  wholesale  quantities  shall  securely  keep  and 
maintain  such  label  thereon;  and  all  persons  selling  at 
wholesale  shall  attach  to  every  package  of  liquor,  when 
sold,  a  label  setting  forth  the  kind  and  quantity  of  liquor 
contained  therein,  by  whom  manufactured,  the  date  of 
sale,  and  the  person  to  whom  sold;  which  label  shall  like- 
wise be  kept  and  maintained  thereon  until  the  liquor  is 
jused  for  the  purpose  for  which  such  sale  was  authorized. 
(41  Stat.  L.  312.) 


486  Federal  Criminal  Law  Procedure. 

Sec.  13.  (Shipments  of  liquor — record  by  carrier — de- 
livery— verified  copy  of  permit  to  purchase.)  It  shall 
be  the  duty  of  every  carrier  to  make  a  record  at  the  place 
of  shipment  of  the  receipt  of  any  liquor  transported,  and 
he  shall  deliver  liquor  only  to  persons  who  present  to  the 
carrier  a  verified  copy  of  a  permit  to  purchase  which  shall 
be  made  a  part  of  the  carrier's  permanent  record  at  the 
office  from  which  delivery  is  made. 

The  agent  of  the  common  carrier  is  hereby  authprized 
to  administer  the  oath  to  the  consignee  in  verification  of 
the  copy  of  the  permit  presented,  who,  if  not  personally 
known  to  the  agent,  shall  be  identified  before  the  delivery 
of  the  liquor  to  him.  The  name  and  address  of  the  per- 
son identifying  the  consignee  shall  be  included  in  the 
record.     (41  Stat.  L.  312.) 

Sec.  14.  (Shipments — duty  of  shipper  to  disclose 
character  of  package — information  on  outside  of  pack- 
age.) It  shall  be  unlawful  for  a  person  to  use  or  induce 
any  carrier,  or  any  agent  or  employee  thereof,  to  carry 
or  ship  any  package  or  receptacle  containing  liquor  with- 
out notifying  the  carrier  of  the  true  nature  and  character 
of  the  shipment.  No  carrier  shall  transport  nor  shall 
any  person  receive  liquor  from  a  carrier  unless  there  ap- 
pears on  the  outside  of  the  package  containing  such  liq- 
uor the  following  information: 

Name  and  address  of  consignor  or  seller,  name  and 
address  of  the  consignee,  kind  and  quantity  of  liquor 
contained  therein,  and  the  number  of  the  permit  to  pur- 
chase or  ship  the  same,  together  with  the  name  and  ad- 
dress of  the  person  using  the  permit.     (41  Stat.  L.  312.) 

Sec.  15.  (False  statements  on  package — effect.)  It 
shall  be  unlawful  for  any  consignee  to  accept  or  receive 
any  package  containing  any  liquor  upon  which  appears 
a  statement  known  to  him  to  be  false,  or  for  any  carrier 
or  other  person  to  consign,  ship,  transport,  or  deliver 
any  such  package,  knowing  such  statement  to  be  false. 
(41  Stat.  L.  313.) 

Sec.  16.  (Shipments — bona  fide  consignee.)  It  shall 
be  unlawful  to  give  to  any  carrier  or  any  officer,  agent, 
or  person  acting  or  assuming  to  act  for  such  carrier  an 


Intoxicating  Liquors.  487 

order  requiring  the  delivery  to  any  person  of  any  liquor 
or  package  containing  liquor  consigned  to,  or  purporting 
or  claimed  to  be  consigned  to  a  person,  when  the  purpose 
of  the  order  is  to  enable  any  person  not  an  actual  bona 
fide  consignee  to  obtain  such  liquor.     (41  Stat.  L.  313.) 

Sec.  17.  (Liquor  advertisements — price  lists.)  It  shall 
be  unlawful  to  advertise  anywhere,  or  by  any  means  or 
method?  liquor,  or  the  manufacture,  sale,  keeping  for  sale 
^FTurnishing  of  the  same,  or'  where,  how,  from  whom, 
or  at  what  price  the  same  may  be  obtained.  No  one  shall 
^er^it_^my_signor_ billboard  containing  such  advertise- 
ment to  remain  upon  one's  premises.  But  nothing  herein 
shall  prohibit  manufacturers  and  wholesale  druggists 
holding  permits  to  sell  liquor  from  furnishing  price  lists, 
with  description  of  liquor  for  sale,  to  persons  permitted 
to  purchase  liquor,  or  from  advertising  alcohol  in  busi- 
ness publications  or  trade  journals  circulating  generally 
among  manufacturers  of  lawful  alcoholic  perfume,  toilet 
preparations,  flavoring  extracts,  medicinal  preparations, 
and  like  articles:  Provided,  however,  That  nothing  in 
this  Act  or  in  the  Act  making  appropriations  for  the 
Post  Office  Department,  approved  March  3,  1917  (Thirty- 
ninth  Statutes  at  Large,  Part  1,  page  1058,  et  seq.),  shall 
apply  to  newspapers  published  in  foreign  countries  when 
mailed  to  this  country.     (41  Stat.  L.  313.) 

For  Act  of  March  3,  1917,  mentioned  in  the  text,  see 
1918  Supp.  Fed.  Stat.  Ann.  394. 

Sec.  18.  (Advertisements  of  things  pertaining  to  manu- 
facture of  liquor.)  It  shall  be  unlawful  to  advertise, 
manufacture,  sell,  or  possess  for  sale  any  utensil,  con- 
trivance, machine,  preparation,  compound,  tablet,  sub- 
stance, formula,  direction,  or  receipt  advertised,  designed, 
or  intended  for  use  in  the  unlawful  manufacture  of  in- 
toxicating liquor.     (41  Stat.  L.  313.) 

Sec.  19.  (Soliciting  liquor  orders.)  No  person  shall 
solicit  or  receive,  nor  knowingly  permit  his  employee  to 
solicit  or  receive,  from  any  person  any  order  for  liquor 
or  give  any  information  of  how  liquor  may  be  obtained 
in  violation  of  this  Act.    (41  Stat.  L.  313.) 


488  Federal  Criminal  Law  Procedure. 

Sec.  20.  (Injuries  resulting  from  intoxication — recov- 
ery of  damages.)  Any  person  who  shall  be  injured  in 
person,  property,  means  of  support,  or  otherwise  by  any 
intoxicated  person,  or  by  reason  of  the  intoxication  of 
any  person,  whether  resulting  in  his  death  or  not,  shall 
have  a  right  of  action  against  any  person  who  shall,  by 
unlawfully  selling  to  or  unlawfully  assisting  in  procuring 
liquor  for  such  intoxicated  person,  have  caused  or  con- 
tributed to  such  intoxication,  and  in  any  such  action  such 
person  shall  have  a  right  to  recover  actual  and  exemplary 
damages.  In  case  of  the  death  of  either  party,  the  action 
or  right  of  action  given  by  this  section  shall  survive  to 
or  against  his  or  her  executor  or  administrator,  and  the 
amount  so  recovered  by  either  wife  or  child  shall  be  his 
or  her  sole  and  separate  property.  Such  action  may  be 
brought  in  any  court  of  competent  jurisdiction.  In  any 
case  where  parents  shall  be  entitled  to  such  damages, 
either  the  father  or  mother  may  sue  alone  therefor,  but 
recovery  by  one  of  such  parties  shall  be  a  bar  to  suit 
brought  by  the  other.    (41  Stat.  L.  313.) 

Sec.  21.  (Property  when  common  nuisance — lien  on 
property.)  Any  room,  house,  building,  boat,  vehicle, 
structure,  or  place  where  intoxicating  liquor  is  manu- 
factured, sold,  kept,  or  bartered,  in  violation  of  this  title, 
and  all  intoxicating  liquor  and  property  kept  and  used 
in  maintaining  the  same,  is  hereby  declared  to  be  a  com- 
mon nuisance,  and  any  person  who  maintains  such  a  com- 
mon nuisance  shall  be  guilty  of  a  misdemeanor  and  upon 
conviction  thereof  shall  be  fined  not  more  than  $1,000  or 
be  imprisoned  for  not  more  than  one  year,  or  both.  If 
a  person  has  knowledge  or  reason  to  believe  that  his 
room,  house,  building,  boat,  vehicle,  structure,  or  place 
is  occupied  or  used  for  the  manufacture  or  sale  of  liquor 
contrary  to  the  provisions  of  this  title,  and  suffers  the 
same  to  be  so  occupied  or  used,  such  room,  house,  build- 
ing, boat,  vehicle,  structure,  or  place  shall  be  subject  to 
a  lien  for  and  may  be  sold  to  pay  all  fines  and  costs  as- 
sessed against  the  person  guilty  of  such  nuisance  for 
such  violation,  and  any  such  lien  may  be  enforced  by 
action  in  any  court  having  jurisdiction.  (41  Stat.  L.  313.) 


Intoxicating  Liquors.  489 

Sec.  22.  (Abatement  of  nuisance — injunction.)  An 
action  to  enjoin  any  nuisance  defined  in  this  title  may  be 
brought  in  the  name  of  the  United  States  by  the  Attorney 
General  of  the  United  States  or  by  any  United  States  at- 
torney or  any  prosecuting  attorney  of  any  state  or  any 
subdivision  thereof  or  by  the  commissioner  or  his  depu- 
ties or  assistants.  Such  action  shall  be  brought  and  tried 
as  an  action  in  equity  and  may  be  brought  in  any  court 
having  jurisdiction  to  hear  and  determine  equity  cases. 
If  it  is  made  to  appear  by  affidavits  or  otherwise,  to  the 
satisfaction  of  the  court,  or  judge  in  vacation,  that  such 
nuisance  exists,  a  temporary  writ  of  injunction  shall 
forthwith  issue  restraining  the  defendant  from  conduct- 
ing or  permitting  the  continuance  of  such  nuisance  until 
the  conclusion  of  the  trial.  If  a  temporary  injunction  is 
prayed  for,  the  court  may  issue  an  order  restraining  the 
defendant  and  all  other  persons  from  removing  or  in 
any  way  interfering  with  the  liquor  or  fixtures,  or  other 
things  used  in  connection  with  the  violation  of  this  Act 
constituting  such  nuisance.  No  bond  shall  be  required  in 
instituting  such  proceedings.  It  shall  not  be  necessary  for 
the  court  to  find  the  property  involved  was  being  unlaw- 
fully used  as  aforesaid  at  the  time  of  the  hearing,  but 
on  finding  that  the  material  allegations  of  the  petition 
are  true,  the  court  shall  order  that  no  liquor  shall  be 
manufactured,  sold,  bartered,  or  stored  in  such  room, 
house,  building,  boat,  vehicle,  structure,  or  place,  or  any 
part  thereof.  And  upon  judgment  of  the  court  ordering 
such  nuisance  to  be  abated,  the  court  may  order  that  the 
room,  house,  building,  structure,  boat,  vehicle,  or  place 
shall  not  be  occupied  or  used  for  one  year  thereafter;  but 
the  court  may,  in  its  discretion,  permit  it  to  be  occupied 
or  used  if  the  owner,  lessee,  tenant,  or  occupant  thereof 
shall  give  bond  with  sufficient  surety,  to  be  approved  by 
the  court  making  the  order,  in  the  penal  and  liquidated 
sum  of  not  less  than  $500  or  more  than  $1,000,  payable  to 
the  United  States,  and  conditioned  that  intoxicating  lio- 
uor  will  not  thereafter  be  manufactured,  sold,  bartered, 
kept,  or  otherwise  disposed  of  therein  or  thereon,  and 
that  he  will  pay  all  fines,  costs,  and  damages  that  may  be 


490  Federal  Criminal  Law  Procedure. 

assessed  for  any  violation  of  this  title  upon  said  property. 
(41  Stat.  L.  314.) 

Sec.  23.  (Person  when  guilty  of  nuisance — fees  of 
officers  enforcing  act — forfeiture  of  leases.)  That  any 
person  who  shall,  with  intent  to  effect  a  sale  of  liquor, 
by  himself,  his  employee,  servant,  or  agent,  for  himself  or 
any  person,  company  or  corporation,  keep  or  carry  around 
on  his  person,  or  in  a  vehicle,  or  other  conveyance  what- 
ever, or  leave  in  a  place  for  another  to  secure,  any  liquor, 
or  who  shall  travel  to  solicit,  or  solicit,  or  take,  or  accept 
orders  for  the  sale,  shipment,  or  delivery  of  liquor  in 
violation  of  this  title  is  guilty  of  a  nuisance  and  may  be 
restrained  by  injunction,  temporary  and  permanent,  from 
doing  or  continuing  to  do  any  of  said  acts  or  things. 

In  such  proceedings  it  shall  not  be  necessary  to  show 
any  intention  on  the  part  of  the  accused  to  continue  such 
violation  if  the  action  is  brought  within  sixty  days  fol- 
lowing any  such  violation  of  the  law. 

For  removing  and  selling  property  in  enforcing  this 
Act  the  officer  shall  be  entitled  to  charge  and  receive  the 
same  fee  as  the  sheriff  of  the  county  would  receive  for 
levying  upon  and  selling  property  under  execution,  and 
for  closing  the  premises  and  keeping  them  closed  a  rea- 
sonable sum  shall  be  allowed  by  the  court. 

Any  violation  of  this  title  upon  any  leased  premises  by 
the  lessee  or  occupant  thereof  shall,  at  the  option  of  the 
lessor,  work  a  forfeiture  of  the  lease.     (41  Stat.  L.  314.) 

Sec.  24.  (Violation  of  injunction — punishment  for 
contempt.)  In  the  case  of  the  violation  of  any  injunction, 
temporary  or  permanent,  granted  pursuant  to  the  provi- 
sions of  this  title,  the  court,  or  in  vacation  a  judge  there- 
of, may  summarily  try  and  punish  the  defendant.  The 
proceedings  for  punishment  for  contempt  shall  be  com- 
menced by  filing  with  the  clerk  of  the  court  from  which 
such  injunction  issued  information  under  oath  setting  out 
the  alleged  facts  constituting  the  violation,  whereupon  the 
court  or  judge  shall  forthwith  cause  a  warrant  to  issue 
under  which  the  defendant  shall  be  arrested.  The  trial 
may  be  had  upon  affidavits,  or  either  party  may  demand 
the  production  and  oral  examination   of  the  witnesses. 


Intoxicating  Liquors.  491 

Any  person  found  guilty  of  contempt  under  the  provi- 
sions of  this  section  shall  be  punished  by  a  line  of  not 
less  than  $500  or  more  than  $1,000,  or  by  imprisonment  of 
not  less  than  thirty  days  nor  more  than  twelve  months,  or 
by  both  fine  and  imprisonment.     (41  Stat.  L.  315.) 

Sec.  25.  (Possession  of  liquor  or  property  designed 
for  manufacture — search  warrants.)  It  shall  be  unlawful 
to  have  or  possess  any  liqnor  or  property  designed  for 
the  manufacture  of  liqnor  intended  for  use  in  violating 
this  title  or  which  has  been  so  used,  and  no  property, 
rights  shall  exist  in  any  such  liquor  or  property.  A  search 
warrant  may  issue  as  provided  in  Title  XT  of  public  law 
numbered  24  of  the  Sixty-fifth  Congress,  approved  June 
15,  1917,  and  such  liquor,  the  containers  thereof,  and  such 
property  so  seized  shall  be  subject  to.such  disposition  as 
the  court  may  make  thereof.  If  it  is  found  that  s1"1' 
liquor  or  property  was  so  unlawfully  held  or  possessed, 
or  had  been  so  unlawfully  used,  the  liquor,  and  all  prop- 
erty designed  for  the  unlawful  manufacture  of  liquor, 
shall  be  destroyed,  unless  the  court  shall  otherwise  order. 
No  search  warrant  shall  issue  to_search  any  private 
dwelling  occupied  as  such  unless  it  is  being  used  for  the 
unlawful  sale  of  intoxicating  liquor,  or  unless  it  is  in 
jmrl^used  for  some  business  purpose  such  as  a  store,  shop, 
saloon,  restaurant,  hotel,  or  boarding  house.  The  term 
"private  dwelling"  shall  be  construed  to  include  the  room 
or  rooms  used  and  occupied  not  transiently  but  solely  as 
a  residence  in  an  apartmenl  house,  hotel,  or  boarding 
house.  The  property  seized  on  any  such  warrant  shall  not 
be  taken  from  the  officer  seizing  the  same  on  any  writ  of 
replevin  or  other  like  process.     (41  Stat.  L.  315.) 

For  Act  of  June  15,  1917,  Title  XI,  mentioned  in  the 
text,  see  1918  Supp.  Fed.  Stat.  Ann.  128. 

Sec.  26.  (Transportation  of  liquor  unlawfully — seiz- 
ure of  vehicle  or  conveyance.)  When  the  commissioner, 
his  assistants,  inspectors,  or  any  officer  of  the  law  shall 
discover  any  person  in  the  act  of  transporting  in  violation 
of  the  law,  intoxicating  liquors  in  any  wagon,  buggy,  au- 
tomobile, water  or  air  craft,  or  other  vehicle,  it  shall 
be  his  duty  to  seize  any  and  all  intoxicating  liquors  found 


492  Federal  Criminal  Law  Procedure. 

therein  being  transported  contrary  to  law.     Whenever 
intoxicating    liquors  transported  or  'possessed  illegally 
shall  be  seized  by  an  officer  he  shall  take  possession  of 
the  vehicle  and  team  or  automobile,  boat,  air  or  water 
craft,  or  any  other  conveyance,  and  shall  arrest  any  per- 
son in  charge  thereof.    Such  officer  shall  at  once  proceed 
against  the  person  arrested  under  the  provisions  of  this 
title  in  any  court  having  competent  jurisdiction;    but 
the  said  vehicle  or  conveyance  shall  be  returned  to  the 
owner  upon  execution  by  him  of  a  good  and  valid  bond, 
with  sufficient  sureties,  in  the  sum  double  the  value  of 
the  property,  which  said  bond  shall  be  approved  by  said 
officer  and  shall  be  conditioned  to  return  said  property 
to  the  custody  of  said  officer  on  the  day  of  trial  to  abide 
the  judgment  of  the  court.     The  court  upon  conviction 
of  the  person  so  arrested  shall  order  the  liquor  destroyed, 
and  unless  good  cause  to  the  contrary  is  shown  by  the 
owner,  shall  order  a  sale  by  public  auction  of  the  prop- 
erty seized,  and  the  officer  making  the  sale,  after  deduct- 
ing: the  expenses  of  keening  the  property,  the  fee  for  the 
seizure,  and  the  cost  of  the  sale,  shall  pav  all  liens,  ac- 
cord in  ar  to  their  priorities,  which  are  established,  by  in- 
tervention or  otherwise  at  said  hearing  or  in  other  pro- 
ceeding brought  for  said   purpose,   as  being  bona  fide 
and  as  having  been  created  without  the  lienor  having 
any  notice  that  the  carrying  vehicle  was  being  used  or 
was  to  be  used  for  illegal  transportation  of  liouor,  and 
shall  pav  the  balance  of  the  nrooeeds  into  the  Treasurv 
of  the  United  States  as  miscellaneous  receipts.    All  liens 
ae-ainst  nroperty  sold  under  the  nrovisions  of  this  sec- 
tion shall  be  transferred  from  the  property  to  the  pro- 
ceeds of  the  sale  of  the  nronertv.     Tf,  however,  no  one 
shall  be  found  claimin0,  the  team,  vphiele.  water  or  air 
craft,    or   automobile,   the   takinor   of   the   same,   with    a 
de«eription   thereof,   shall   be   advertised   in   some  news- 
paper published  in  the  citv  or  county  where  taken  or  if 
there  be  no  newspaper  published  in  such  city  or  county, 
in  a  newsnaper  haviner  circulation  in  the  county,  once  a 
week  for  two  weeks  and  bv  handbills  r>osted   in   three 
public  places  near  the  place  of  seizure,  and  if  no  claimant 


Intoxicating  Liquors.  493 

shall  appear  within  ten  days  after  the  last  publication  of 
the  advertisement,  the  property  shall  be  sold  and  the  pro- 
ceeds after  deducting  the  expenses  and  costs  shall  be 
paid  into  the  Treasury  of  the  United  States  as  miscel- 
laneous receipts.     (41  Stat.  L.  315.) 

Sec.  27.  (Disposition  of  seized  liquors.)  In  all  cases 
in  which  intoxicating  liquors  may  be  subject  to  be  des- 
troyed under  the  provisions  of  this  Act  the  court  shall 
have  jurisdiction  upon  the  application  of  the  United 
States  attorney  to  order  them  delivered  to  any  depart- 
ment or  agency  of  the  United  States  Government  for 
medicinal,  mechanical,  or  scientific  uses,  or  to  order  the 
same  sold  at  private  sale  for  such  purposes  to  any  per- 
jsonTnaVing  a  permit  to  purchase  liquor  the  proceeds  to 
be  covered  into  the  Treasury  of  the  United  States  to 
the  credit  of  miscellaneous  receipts,  and  all  liquor  here- 
tofore seized  in  any  suit  or  proceeding  brought  for  vio- 
lation of  the  law  may  likewise  be  so  disposed  of,  if  not 
claimed  within  sixty  days  from  the  date  this  section  takes  < 
effect.     (41  Stat.  L*  316'.) 

Sec.  28.  (Enforcement  by  Commissioner  of  Internal 
Revenue  and  assistants — power  conferred.)  The  commis- 
sioner, his  assistants,  agents  and  inspectors,  and  all  other 
officers  of  the  United  States,  whose  duty  it  is  to  enforce 
criminal  laws,  shall  have  all  the  power  and  protection 
in  the  enforcement  of  this  Act  or  any  provisions  thereof 
which  is  conferred  by  law  for  the  enforcement  of  exist- 
ing laws  relating  to  the  manufacture  or  sale  of  intoxi- 
cating liquors  under  the  law  of  the  United  States.  (41 
"Slat.  L.  316.) 

Sec.  29.  (Violations  of  act — penalties.)  Any  person 
who  manufactures  or  sells  liquor  in  violation  of  this 
title  shall  for  a  first  offense  be  fined  not  more  than  $1,000 
or  imprisoned  not  exceeding  six  months,  and  for  a  second 
or  subsequent  offense  shall  be  fined  not  less  than  $200 
nor  more  than  $2,000  and  be  imprisoned  not  less  than 
one  month  nor  more  than  five  years. 

Any  person  violating  the  provisions  of  any  permit, 
or  who  makes  any  false  record,  report,  or  affidavit  re- 


4:94  Federal  Criminal  Law  Procedure. 

quired  by  this  title,  or  violates  any  of  the  provisions  of 
this  title,  for  which  offense  a  special  penalty  is  not  pre- 
scribed, shall  be  fined  for  a  first  offense  not  more  than 
$500;  for  a  second  offense  not  less  than  $100  nor  more 
than  $1,000  or  be  imprisoned  not  more  than  ninety  days; 
for  any  subsequent  offense  he  shall  be  fined  not  less  than 
$500  and  be  imprisoned  not  less  than  three  months  nor 
more  than  two  years  years.  It  shall  be  the  duty  of  the 
prosecuting  officer  to  ascertain  whether  the  defendant  has 
been  previously  convicted  and  to  plead  the  prior  con- 
viction in  the  affidavit,  information,  or  indictment.  The 
penalties  provided  in  this  Act  against  the  manufacture 
of  liquor  without  a  permit  shall  not  apply  to  a  person 
for  manufacturing  nonintoxicating  cider  and  fruit  juices 
exclusively  for  use  in  his  home,  but  such  cider  and  fruit 
juices  shall  not  be  sold  or  delivered  except  to  persons 
having  permits  to  manufacture  vinegar.  41  Stat.  L. 
316.) 

Sec.  30.  (Evidence — witnesses — incriminating  testi- 
mony.) No  person  shall  be  excused,  on  the  ground  that 
it  may  tend  to  incriminate  him  or  subject  him  to  a  pen- 
alty or  forfeiture,  from  attending  and  testifying,  or  pro- 
ducing books,  papers,  documents,  and  other  evidence  in 
obedience  to  a  subpoena  of  any  court  in  any  suit  or  pro- 
ceeding based  upon  or  growing  out  of  any  alleged  vio- 
lation of  this  Act;  but  no  natural  person  shall  be  prose- 
cuted or  subjected  to  any  penalty  or  forfeiture  for  or 
on  account  of  any  transaction,  matter,  or  thing  as  to 
which,  in  obedience  to  a  subpoena  and  under  oath,  he 
may  so  testify  or  produce  evidence,  but  no  person  shall 
be  exempt  from  prosecution  and  punishment  for  per- 
jury committed  in  so  testifying.     (41  Stat.  L.  317.) 

Sec.  .31.  (Unlawful  sale  of  liquor — venue  of  prosecu- 
tion.) 

In  case  of  a  sale  of  liquor  where  the  delivery  thereof 
was  made  by  a  common  or  other  carrier  the  sale  and  de- 
livery shall  be  deemed  to  be  made  in  the  county  or  dis- 
trict wherein  the  delivery  was  made  by  such  carrier  to  the 
consignee,  his  agent  or  employee,  or  in  the  county  or 
district  wherein  the  sale  was  made,  or  from  which  the 


Intoxicating  Liquors.  4!).") 

shipment  was  made,  and  prosecution  for  such  sale  or 
delivery  may  be  had  in  any  such  county  or  district.  (41 
Stat.  L.  317.') 

Sec.  32.  (Affidavit,  information  or  indictment — suffi- 
ciency— separate  offenses — bill  of  particulars.) 

In  any  affidavit,  information,  or  indictment  for  the  vio- 
lation of  this  Act,  separate  offenses  may  be  united  in  sep 
arate  counts  and  the  defendant  may  be  tried  on  all  at 
one  trial  and  the  penalty  for  all  offenses  may  be  imposed. 
It  shall  not  be  necessary  in  any  affidavit,  information, 
or  indictment  to  give  the  name  of  the  purchaser  or  to 
include  any  defensive  negative  averments,  but  it  shall 
be  sufficient  to  state  that  the  act  complained  of  was  then 
and  there  prohibited  and  unlawful,  but  this  provision 
shall  not  be  construed  to  preclude  the  trial  court  from 
directing  the  furnishing  the  defendant  a  bill  of  particu- 
lars when  it  deems  it  proper  to  do  so.     (41  Stat.  L.  317.) 

Sec.  33.  (Possession  of  liquor — presumption — arising 
— report — possession  in  private  dwelling.)  After  Febru- 
ary 1,  1920,  the  possession  of  liquors  by  any  person  not 
legally  permitted  under  this  title  to  possess  liquor  shall  be 
prima  facie  evidence  that  such  liquor  is  kept  for  the  pur- 
pose of  being  sold,  bartered,  exchanged,  given  away,  fur- 
nished, or  otherwise  disposed  of  in  violation  of  the  pro- 
visions of  this  title.  Every  person  legally  permitted 
under  this  title  to  have  liquor  shall  report  to  a  commis- 
sioner within  ten  days  after  the  date  when  the  Eighteenth 
Amendment  to  the  Constitution  of  the  United  States  goes 
into  effect,  the  kind  and  amount  of  intoxicating  liquors 
in  his  possession.  But  it  shall  not  be  unlawful  to  possess 
liquors  in  one's  private  dwelling  while  the  same  is  oc- 
cupied and  used  by  him  as  his  dwelling  only  and  such 
liquor  need  not  be  reported,  provided  such  liquors  are 
for  use  only  for  the  personal  consumption  of  the  owner 
thereof  and  his  family  residing  in  such  dwelling  and  of 
Ins  bona  fide  guests  when  entertained  by  him  therein; 
and  the  burden  of  proof  shall  be  upon  the  possessor  in 
any  action  concerning  the  same  to  prove  that  such  liquor 
was  lawfully  acquired,  possessed,  and  used.  (41  Stat. 
L.  317.) 


496  Federal  Criminal  Law  Procedure. 

Sec.  34.  (Records  and  reports — inspection — evidence 
— copies.)  All  records  and  reports  kept  or  filed  under  the 
provisions  of  this  Act  shall  be  subject  to  inspection  at 
any  reasonable  hour  by  the  commissioner  or  any  of  his 
agents  or  by  any  public  prosecutor  or  by  any  person 
designated  by  him,  or  by  any  peace  officer  in  the  State 
where  the  record  is  kept,  and  copies  of  such  records  and 
reports  duly  certified  by  the  person  with  whom  kept  or 
filed  may  be  introduced  in  evidence  with  like  effect  as 
the  originals  thereof,  and  verified  copies  of  such  records 
shall  be  furnished  to  the  commissioners  when  called  for. 
(41  Stat.  L.  317.) 

Sec.  35.  (Effect  of  Act  on  existing  legislation — liquor 
taxes  and  penalties — compromising  civil  causes.)  All 
provisions  of  law  that  are  inconsistent  with  this  Act  are 
repealed  only  to  the  extent  of  such  inconsistency  and  the 
regulations  herein  provided  for  the  manufacture  or  traf- 
fic in  intoxicating  liquor  shall  be  construed  as  in  addition 
to  existing  laws.  This  Act  shall  notj^elieve  anyone  from 
paying  any  taxes  or  other  charges  imposed  upon  the 
manufacture  or  traffic  in  such  liquor.  No  liquor  revenue 
stamps  or  tax  receipts  for  any  illegal  manufacture  or 
sale  shall  be  issued  in  advance,  but  upon  evidence  of  such 
illegal  manufacture  or  sale  a  tax  shall  be  assessed  against 
and  collected  from  the  person  responsible  for  such  il- 
legal manufacture  or  sale  in  double  the  amount  now 
provided  by  law,  with  an  additional  penalty  of  $500  on 
retail  dealers  and  $1,000  on  manufacturers.  The  pay- 
ment of  such  tax  or  penalty  shall  give  no  right  to  engage 
in  the  manufacture  or  sale  of  such  liquor,  or  relieve  any- 
one from  criminal  liability,  nor  shall  this  Act  relieve  any 
person  from  any  liability,  civi  lor  criminal,  heretofore  or 
hereafter  incurred  under  existing  laws. 

The  Commissioner,  with  the  approval  of  the  Secretary 
of  the  Treasury,  may  compromise  any  civil  cause  arising 
under  this  title  before  bringing  action  in  court;  and  with 
the  approval  of  the  Attorney  General  he  may  compromise 
any  such  cause  afteraction  thereon  has  been  commenced. 
(41  Stat.  L.  317.) 

Sec.  36.  (Invalidity  of  part  of  Act — effect  as  to  re- 
mainder.) 


Intoxicating  Liquors.  497 

If  any  provision  of  this  Act  shall  be  held  invalid  it 
shall  not  be  construed  to  invalidate  other  provisions  of 
the  Act.  (41  Stat.  L.  318.) 

Sec.  37.  (Effect  of  Act  on  liquor  already  manufac- 
tured— manufacture  of  low  per  cent,  alcoholic  beverages 
— tax.)  Nothing  herein  shall  prevent  the  storage  in  Unit- 
ed States  bonded  warehouses  of  all  liquor  manufactured 
prior  to  the  taking  effect  of  this  AclTor  prevent  the  trans- 
portation of  such  liquor  to_  such  warehouse  or  to  any 
wholesale  druggist  for  sale  to  such  druggist  for  purpose 
not  prohibited  when  the  tax  is  paid,  and  permits  may  be 
issued  therefor. 

A  manufacturer  of  any  beverage  containing  less  than 
one-half  of  1  per  centum  of  alcohol  by  volume  may,  on 
making  application  and  giving  such  bond  as  the  commis- 
sioner shall  prescribe,  be  given  a  permit  to  develop  in 
the  manufacture  thereof  by  the  usual  methods  of  fer- 
mentation and  fortification  or  otherwise  a  liquid  such  as 
beer,  ale,  porter,  or  wine,  containing  more  than  one-half 
of  1  per  centum  of  alcohol  by  volume,  but  before  any  such 
liquid  is  withdrawn  from  the  factory  or  otherwise  dis- 
posed of  the  alcoholic  contents  thereof  shall  under  such 
rules  and  regulations  as  the  commissioner  may  prescribe 
be  reduced  below  such  one-half  of  1  per  centum  of  alco- 
hol: Provided,  That  such  liquid  may  be  removed  and 
transported,  under  bond  and  under  such  regulations  as 
the  commissioner  may  prescribe,  from  one  bonded  plant 
or  warehouse  to  another  for  the  purpose  of  having  the 
.alcohol  extracted  therefrom.  And  such  liquids  may  be 
developed,  under  permit,  by  persons  other  than  the  manu- 
facturers of  beverages  containing  less  than  one-half  of  1 
per  centum  of  alcohol  by  volume,  and  sold  to  such  manu- 
facturers for  conversion  into  such  beverages.  The  al- 
cohol removed  from  such  liquid,  if  evaporated  and  not 
condensed  and  saved,  shall  not  be  subject  to  tax;  if 
saved,  it  shall  be  subject  to  the  same  law  as  other  al- 
coholic liquors.  Credit  shall  be  allowed  on  the  tax 
due  on  anv  alcohol  so  saved  to  the  amount  of  any  tax 
paid  upon  distilled  spirits  or  brandy  used  in  the  fortifica- 
tion of  the  liquor  from  which  the  same  is  saved. 

When  fortified  wines  are  made  and  used  for  the  pro- 

32 


498  Federal  Criminal  Law  Procedure. 

duction  of  nonbeverage  alcohol,  and  dealcoholized  wines 
containing  less  than  one-half  of  1  per  centum  of  alcohol 
by  volume,  no  tax  shall  be  assessed  or  paid  on  the  spirits 
used  in  such  fortification,  and  such  dealcoholized  wines 
produced  under  the  provisions  of  this  Act,  whether  car- 
bonated or  not,  shall  not  be  subject  to  the  tax  on  arti- 
ficially carbonated  or  sparkling  wines,  but  shall  be  sub- 
ject to  the  tax  on  still  wines  only. 

In  any  case  where  the  manufacturer  is  charged  with 
manufacturing  or  selling  for  beverage  purposes  any  malt, 
vinous,  or  fermented  liquids  containing  one-lialf  of  1  per 
centum  or  more  of  alcohol  by  volume,  or'  in  any  case 
where  the  manufacturer,  having  been  permitted  by  the 
commissioner  to  develop  a  liquid  such  as  ale,  beer,  porter, 
or  wine  containing  more  than  one-half  of  1  per  centum  of 
alcohol  by  volume  in  the  manner  and  for  the  purpose 
herein  provided,  is  charged  with  failure  to  reduce  the 
alcoholic  content  of  any  such  liquid  below  such  one-half 
of  1  per  centum  before  withdrawing  the  same  from  the 
factory,  then  in  either  such  case  the  burden  of  proof  shall 
be  on  such  manufacturer,  to  show  that  such  liquid  so 
manufactured,  sold,  or  withdrawn  contains  less  than  one- 
half  of  1  per  centum  of  alcohol  by  volume.  In  any  suit 
or  proceeding  involving  the  alcoholic  content  of  any 
beverage,  the  reasonable  expense  of  analysis  of  such  bever- 
age shall  be  taxed  as  costs  in  the  case.    (41  Stat.  L.  318.) 

Sec.  38.  (Employees  to  enforce  provisions  of  Act — 
appointment — civil  service.)  The  Commissioner  of  In- 
ternal Revenue  and  the  Attorney  General  of  the  United 
States  are  hereby  respectively  authorized  to  appoint  and 
employ  such  assistants,  experts,  clerks,  and  other  em- 
ployees in  the  District  of  Columbia  or  elsewhere,  and  to 
purchase  such  supplies  and  equipment  as  they  may  deem 
necessary  for  the  enforcement  of  the  provisions  of  this 
Act,  but  such  assistants,  experts,  clerks,  and  other  em- 
ployees, except^  such  executive  officers  as  may  be  ap- 
pointed by  the  Commissioner  or  the  Attorney  General  to  • 
have  immediate  direction  of  the  enforcement  of  the  pro- 
visions of  this  Act,  and  persons  authorized  to  issue  per- 
mits, and  agents  and  inspectors  in  th  field  service,  shall 
be  appointed  under  the  rules  and  regulations  prescribed 


Intoxicating  Liquors.  499 

by  the  Civil  Service  Act:  Provided,  That  the  Commis- 
sioner and  Attorney  General  in  making  such  appoint- 
ments shall  give  preference  to  those  who  have  served  in 
the  military  or  naval  sendee  in  the  recent  war,  if  other- 
wise qualified,  and  there  is  hereby  authorized  to  be  ap- 
propriated, out  of  any  money  in  the  Treasury  not  other- 
wise appropriated,  such  sum  as  may  be  required  for  the 
enforcement  of  the  Act  including  personal  services  in  the 
District  of  Columbia,  and  for  the  fiscal  year  ending  June 
30,  1920,  there  is  hereby  appropriated^  out  of  any  money 
in  the  Treasury  not  otherwise  appropriated,  the  sum  of 
$2,000,000  for  the  use  of  the  Commissioner  of  Internal 
Revenue  and  $100,000  for  the  use  of  the  Department  of 
Justice  for  the  enforcement  of  the  provisions  of  this  Act, 
including  personal  services  in  the  District  of  Columbia 
and  necessary  printing  and  binding.     (41  Stat.  L.  319.) 

Sec.  39.  (Property  of  nonviolator  of  Act  proceeded 
against — summons.)  In  all  cases  wherein  the  property  of 
any  citizen  is  proceeded  against  or  wherein  a  judgment 
effecting  it  might  be  rendered,  and  the  citizen  is  not  the 
one  who  in  person  violated  the  provisions  of  the  law, 
sulnrnbns  must  be  issued  in  due  form  and  served  person- 
allv,  if  said  person  is  to  be  found  within  the  jurisdiction 
of  the  court.    (41  Stat.  L.  319.) 

Title  III. 

Industrial  Alcohol. 

Sec.  1.  ( Terms  defined  —  ' '  alcohol "  —  "  container. ' ' ) 
When  used  in  this  title — 

The  term  "alcohol"  means  that  substance  known  as 
ethyl  alcohol,  hydrated  oxide  of  ethyl,  of  spirit  of  wine, 
from  whatever  source  of  whatever  processes  produced. 

The  term  "container"  includes  any  receptacle,  vessel, 
or  form  of  package,  tank,  or  conduit  used  or  capable  of 
use  or  holding,  storing,  transferring,  or  shipment  of  al- 
cohol.   (41  Stat.  L.  319.) 

Industrial  Alcohol  Plants  and  Warehouses. 

Sec.  2.  (Alcohol  plants — bonding.)  Any  person  now 
producing  alcohol  shall,  within  thirty  days  after  the  pas- 
sage of  this  Act,  make  application  to  the  commissioner  for 


500  Federal  Criminal  Law  Procedure. 

registration  of  his  industrial  alcohol  plant,  and  as  soon 
thereafter  as  practicable  the  premises  shall  be  bonded 
and  permit  may  issue  for  the  operation  of  such  plant,  and 
any  person  hereafter  establishing  a  plant  for  the  pro- 
duction of  alcohol  shall  likewise  before  operation  make 
application,  file  bond,  and  receive  permit.  (41  Stat.  L. 
319.) 

Sec.  3.  (Warehouses — bonding — entry,  storage  and 
withdrawal  of  alcohol — regulations.)  Warehouses  for 
the  storage  and  distribution  of  alcohol  to  be  used  ex- 
clusively for  other  than  beverage  purposes  may  be  es- 
tablished upon  filing  of  application  and  bond,  and  is- 
suance of  permit  at  such  places,  either  in  connection  with 
the  manufacturing  plant  or  elsewhere,  as  the  commis- 
sioner may  determine;  and  the  entry  and  storage  of 
alcohol  therein,  and  the  withdrawals  of  alcohol  therefrom 
shall  be  made  in  such  containers  and  by  such  means  as 
the  commissioner  by  regulation  may  prescribe.  (41  Stat. 
L.  319.) 

Sec.  4.  (Transfer  of  alcohol  from  one  plant  or  ware- 
house to  another.)  Alcohol  produced  at  any  registered 
industrial  alcohol  plant  or  stored  in  any  bonded  ware- 
house may  be  transferred  under  regulations  to  any  other 
registered  industrial  alcohol  plant  or  bonded  warehouse 
for  any  lawful  purpose.     (41  Stat.  L.  320.) 

Sec.  5.  (Taxes  on  alcohol — lien.)  Any  tax  imposed 
by  law  upon  alcohol  shall  attach  to  such  alcohol  as  soon 
as  it  is  in  existence  as  such,  and  all  proprietors  of  in- 
dustrial alcohol  plants  and  bonded  warehouses  shall  be 
jointly  and  severally  liable  for  any  and  all  taxes  on  any 
and  all  alcohol  produced  thereat  or  stored  therein.  Such 
taxes  shall  be  a  first  lien  on  such  alcohol  and  the  prem- 
ises and  plant  in  which  such  alcohol  is  produced  or  stored, 
together  with  all  improvements  and  appurtenances  there- 
unto belonging  or  in  any  wise  appertaining.  (41  Stat.  L. 
320.) 

Sec.  6.  (Effect  of  constitutional  amendment  on  dis- 
tilled spirits  in  bonded  warehouses — disposition.)  Any 
distilled  spirits  produced  and  fit  for  beverage  purposes 
remaining  in  any  bonded  warehouse  on  or  before  the  date 
when  the  Eighteenth  Amendment  of  the  Constitution  of 


Intoxicating  Liquors.  '501 

the  United  States  goes  into  effect,  may,  under  regula- 
tions, be  withdrawn  therefrom,  either  for  denaturation 
at  any  bonded  denaturing  plant  or  for  deposit  in  a  bonded 
warehouse  established  under  this  Act;  and  when  so  with- 
drawn, if  not  suitable  as  to  proof,  purity,  or  quality  for 
other  than  beverage  purposes,  such  distilled  spirits  shall 
be  redistilled,  purified,  and  changed  in  proof  so  as  to 
render  such  spirits  suitable  for  other  purposes,  and  hav- 
ing been  so  treated  may  thereafter  be  denatured  or  sold 
in  accordance  with  the  provisions  of  this  Act.  (41  Stat. 
L.  320.) 

Sec.  7.  (Distilleries  or  bonded  warehouses  heretofore 
legally  established — disposition.)  Any  distillery  or  bond- 
ed warehouse  heretofore  legally  established  may,  upon 
filing  application  and  bond  and  the  granting  of  permit, 
be  operated  as  an  industrial  alcohol  plant  or  bonded 
warehouse  under  the  provisions  of  this  title  and  regula- 
tions made  thereunder.     (41  Stat.  L.  320.) 

Sec.  8.  (Alcohol  how  made — use  and  disposition.) 
Alcohol  may  be  produced  at  any  industrial  alcohol  plant 
established  under  the  provisions  of  this  title,  from  any 
raw  materials  or  by  any  process  suitable  for  the  produc- 
tion of  alcohol,  and,  under  regulations,  may  be  used  at 
any  industrial  alcohol  plant  or  bonded  warehouse  or  sold 
or  disposed  of  for  any  lawful  purpose,  as  in  this  Act 
provided.    (41  Stat.  L.  320.) 

Sec.  9.  (Exemption  of  plants  and  warehouses  from 
certain  statutory  provisions.  )  Industrial  alcohol  plants 
and  bonded  warehouses  established  under  the  provisions 
of  this  title  shall  be  exempt  from  the  provisions  of  sec- 
tions 3154,  3244,  3258,  3259,  3260,  3263,  3264,  3266,  3267, 
3268,  3269,  3271,  3273,  3274,  3275,  3279,  3280,  3283,  3284, 
3285,  3286,  3287,  3288,  3289,  3290,  3291,  3292,  3293,  3294, 
3295,  3302,  3303,  3307,  3308,  3309,  3310,  3311,  3312,  3313, 
3314,  and  3327,  of  the  Revised  Statutes;  sections  48  to 
60,  inclusive,  and  sections  62  and  67  of  the  Act  of  August 
27,  1894  (Twenty-eight  Statutes,  pages  563  to  568),  and 
from  such  other  provisions  of  existing  laws  relating  to 
distilleries  and  bonded  warehouses  as  may,  by  regula- 
tions, be  declared  inapplicable  to  industrial  alcohol  plants 
and  bonded  warehouses  established  under  this  Act. 


502  Federal  Criminal  Law  Procedure. 

Regulations  may  be  made  embodying  any  provisions  of 
the  sections  above-enumerated.    (41  Stat.  L.  320.) 

See  the  title  Internal  Revenue  in  3  Fed.  Stat.  Ann.  (2d 
ed.)  954,  3  Fed.  Stat.  Ann.  (1st  ed.)  540,  for  the  statutes 
mentioned  in  the  text. 

Tax-Free  Alcohol. 

Sec.  10.  (Denaturing  plants — establishment — sale  of 
denatured  alcohol  tax-free — distilled  vinegar.)  Upon  the 
filing  of  an  application  and  bond  and  issuance  of  permit 
denaturing  plants  may  be  established  upon  the  premises 
of  any  industrial  alcohol  plant,  or  elsewhere,  and  shall 
be  used  exclusively  for  the  denaturation  of  alcohol  by 
the  admixture  of  such  denaturing  materials  as  shall  ren- 
der the  alcohol,  or  any  compound  in  which  it  is  authorized 
to  be  used,  unfit  for  use  as  an  intoxicating  beverage. 

Alcohol  lawfully  denatured  may,  under  regulations,  be 
sold  free  of  tax  either  for  domestic  use  or  for  export. 

Nothing  in  this  Act  shall  be  construed  to  require  manu- 
facturers of  distilled  vinegar  to  raise  the  proof  of  any 
alcohol  used  in  such  manufacture  or  to  denature  the  same. 
(41  Stat.  L.  320.) 

Sec.  11.  (Withdrawals  of  alcohol  tax  free.)  Alcohol 
produced  at  any  industrial  alcohol  plant  or  stored  in  any 
bonded  warehouse  may,  under  regulations,  be  withdrawn 
tax  free  as  provided  by  existing  law  from  such  plant 
or  warehouse  for  transfer  to  any  denaturing  plant  for 
denaturation,  or  may,  under  regulations,  before  or  after 
denaturation,  be  removed  from  any  such  plant  or  ware- 
house for  any  lawful  tax-free  purpose. 

Spirits  of  less  proof  than  one  hundred  and  sixty  de- 
grees may,  under  regulations,  be  deemed  to  be  alcohol  for 
the  purpose  of  denaturation,  under  the  provisions  of  this 
title. 

Alcohol  may  be  withdrawn,  under  regulations,  from 
any  industrial  plant  or  bonded  warehouse  tax  free  by 
the  United  States  or  any  governmental  agency  thereof, 
or  by  the  several  States  and  Territories  or  any  munici- 
pal subdivision  thereof  or  by  the  District  of  Columbia, 
or  for  the  use  of  any  scientific  university  or  college  of 
learning,  any  laboratory  for  use  exclusively  in  scienitfic 
research,  or  for  use  in  any  hospital  or  sanatorium, 


Intoxicating  Liquors.  50o 

But  any  person  permitted  to  obtain  alcohol  tax  free, 
except  the  United  States  and  the  several  States  and  Ter- 
ritories and  subdivisions  thereof,  and  the  District  of  Co- 
lumbia, shall  first  apply  for  and  secure  a  permit  to  pur- 
chase the  same  and  give  the  bonds  prescribed  under  title 
II  of  this  Act,  but  alcohol  withdrawn  for  nonbeverage 
purposes  for  the  use  of  the  United  States  and  the  several 
States,  Territories  and  subdivisions  thereof,  and  the  Dis- 
trict of  Columbia  may  be  purchased  and  withdrawn  sub- 
ject only  to  such  regulations  as  may  be  prescribed.  (41 
Stat.  L.  321.) 

General  Provisions. 

Sec.  12.  (Additional  penalties.)  The  penalties  pro- 
vided in  this  title  shall  be  in  addition  to  any  penalties 
provided  in  title  2,  of  this  Act,  unless  expressly  otherwise 
therein  provided.     (41  Stat.  L.  321.) 

Sec.  13.  (Regulations  by  Commissioner  of  Internal 
Revenue.)  The  commissioner  shall  from  time  to  time 
issue  regulations  respecting  the  establishment,  bonding, 
and  operation  of  industrial  alcohol  plants,  denaturing 
plants,  and  bonded  warehouses  authorized  herein,  and 
the  distribution,  sale,  export,  and  use  of  alcohol  which 
may  be  necessary,  advisable,  or  proper,  to  secure  the  rev- 
enue, to  prevent  diversion  of  the  alcohol  to  illegal  uses, 
and  to  place  the  nonbeverage  alcohol  industry  and  other 
industries  using  such  alcohol  as  a  chemical  raw  material 
or  for  other  lawful  purposes  upon  the  highest  possible 
plane  of  scientific  and  commercial  efficiency  consistent 
with  the  interest  of  the  Government,  and  which  shall 
insure  an  ample  supply  of  such  alcohol  and  promote  its 
use  in  scientific  research  and  the  development  of  fuels, 
dyes,  and  other  lawful  products.     (41  Stat.  L.  321.) 

Sec.  14.  (Loss  of  alcohol  by  evaporation,  etc. — refund 
of  tax.)  Whenever  any  alcohol  is  lost  by  evaporation  or 
other  shrinkage,  leakage,  casualty,  or  unavoidable  cause 
during  distillation,  redistillation,  denaturation,  withdraw- 
al, piping,  shipment,  warehousing,  storage,  packing, 
transfer,  or  recovery,  of  any  such  alcohol  the  commis- 
sioner may  remit  or  refund  any  tax  incurred  under  exist- 
ing law  upon  such  alcohol,  provided  he  is  satisfied  that 


504  Federal  Criminal  Law  Procedure. 

the  alcohol  has  not  been  diverted,  to  any  illegal  use:  Pro- 
vided, also,  That  such  allowance  shall  not  be  granted 
if  the  person  claiming  same  is  indemnified  against  such 
loss  by  a  valid  claim  of  insurance.    (41  Stat.  L.  321.) 

ec.  15.  (Operators  of  industrial  alcohol  or  denatur- 
ing plants — violation  of  laws  and  regulations — penalty.) 
whoever  operates  an  industrial  alcohol  plant  or  a  de- 
naturing plant  without  complying  with  the  provisions  of 
this  title  and  lawful  regulations  made  thereunder,  or 
whoever  withdraws  or  attempts  to  withdraw  or  secure 
tax  free  any  alcohol  subject  to  tax,  or  whoever  otherwise 
violates  any  of  the  provisions  of  this  title  or  of  regula- 
tions lawfully  made  thereunder  shall  be  liable,  for  the 
first  offense,  to  a  penalty  of  not  exceeding  $1,000,  or  im- 
prisonment not  exceeding  thirty  days,  or  both,  and  for  a 
second,  or,  cognate  offense  to  a  penalty  of  not  less  than 
$100  nor  more  than  $10,000,  and  to  imprisonment  of  not 
less  than  thirty  days  nor  more  than  one  year.  It  shall  be 
lawful  for  the  commissioner  in  all  cases  of  second  or 
cognate  offense  to  refuse  to  issue  for  a  period  of  one  year 
a  permit  for  the  manufacture  or  use  of  alcohol  upon  the 
premises  of  any  person  responsible  in  any  degree  for 
the  violation.     (41  Stat.  L.  321.) 

Sec.  16.  (Collection  of  taxes — assessment  or  stamp.) 
Any  tax  payable  upon  alcohol  under  existing  law  may  be 
collected  either  by  assessment  or  by  stamp  as  regulations 
shall  provide;  and  if  by  stamp,  regulations  shall  issue 
prescribing  the  kind  of  stamp  to  be  used  and  the  manner 
of  affixing  and  canceling  the  same.     (41  Stat.  L.  322.) 

Sec.  17.  (Release  of  seized  property.)  When  any 
property  is  seized  for  violation  of  this  title  it  may  be 
released  to  the  claimant  or  to  any  intervening  party,  in 
the  discretion  of  the  commissioner,  on  a  bond  given  and 
approved.    (41  Stat.  L.  322.) 

Sec.  18.  (Application  of  administrative  laws  to  this 
title.)  All  administrative  provisions  of  internal-revenue 
law,  including  those  relating  to  assessment,  collection, 
abatement,  and  refund  of  taxes  and  penalties,  and  the 
seizure  and  forfeiture  of  property,  are  made  applicable 
to  this  title  in  so  far  as  they  are  not  inconsistent  with 
the  provisions  thereof.     (41  Stat.  L.  322.) 


Intoxicating  Liquoks.  '505 

Sec.  19.  (Prior  statutes  relating  to  alcohol — repeal.) 
All  prior  statutes  relating  to  alcohol  as  defined  in  this 
title  are  hereby  repealed  in  so  far  as  they  are  inconsistent 
with  the  provisions  of  this  title.     (41  Stat.  L.  322.) 

Sec.  20.  (Canal  Zone — prohibition  extended  to — of- 
fenses.) That  it  shall  be  unlawful  to  import  or  introduce 
into  the  Canal  Zone,  or  to  manufacture,  sell,  give  away, 
dispose  of,  transport,  or  have  in  one's  possession  or  under 
one's  control  within  the  Canal  Zone,  any  alcoholic,  fer- 
mented, brewed,  distilled,  vinous,  malt,  or  spirituous  liq- 
uors, except  for  sacramental,  scientific,  pharmaceutical, 
industrial,  medicinal  purposes,  under  regulations  to  be 
made  by  the  President,  and  any  such  liquors  within  the 
Canal  Zone  in  violation  hereof  shall  be  forfeited  to  the 
United  States  and  seized:  Provided,  That  this  section 
shall  not  apply  to  liquor  in  transit  through  the  Panama 
Canal  or  on  the  Panama  Railroad. 

That  each  and  every  violation  of  any  of  the  provisions 
of  this  section  shall  be  punished  by  a  fine  of  not  more 
than  $1,000  or  imprisonment  not  exceeding  six  months 
for  a  first  offense,  and  by  a  fine  not  less  than  $200  nor 
more  than  $2,000  and  imprisonment  not  less  than  one 
month  nor  more  than  five  years  for  a  second  or  subse- 
quent offense. 

That  all  offenses  heretofore  committed  within  the  Ca- 
nal Zone  may  be  prosecuted  and  all  penalties  therefor 
enforced  in  the  same  manner  and  to  the  same  extent  as 
if  this  Act  had  not  been  passed.      (14   Stat.   L.   322.) 

Sec.  21.  (Act  when  in  effect.)  Titles  I  and  III  and 
sections  1,  27,  37,  and  38  of  title  II  of  this  Act  shall  take  ef- 
fect and  be  in  force  from  and  after  the  passage  and  ap- 
proval of  the  Act.  The  other  sections  of  titlell  shall  take 
effect  and  be  in  force  from  and  after  the  date  when  the 
eighteenth  amendment  of  the  Constitution  of  the  Uuited 
States  goes  into  effect.    (41  Stat.  322.) " 

Sec.  1104.  Decisions  Under  Different  Provisions  of 
the  Volstead  Act. 

There  is  some  difference  in  the  holding  of  the  courts 
with  reference  to  the  forfeiture  features  of  the  Act;  the 
following  holding  that  the  vehicle  is  forfeited  even  though 
the  owner  of  the  vehicle  did  not  know  it  was  to  be  used 


506  Federal  Criminal  Law  Procedure. 

in  the  illegal  transportation  of  liquor,  under  Sec.  3450  of 
the  Eevised  Statutes,  Compiled  Statutes,  Sec.  6352.  Lo- 
gan vs.  U.  S.,  260  F.  746;  U.  S.  vs.  Mincey,  254  F.  287; 
U.  S.  vs.  Fenton,  268  F.  221;  U.  S.  vs.  One,  272  F.  188; 
Shawnee  vs.  U.  S.,  249  F.  583;  U.  S.  vs.  Brockley,  266 
F.  1001;  U.  S.  vs.  Burns,  270  F.  681;  IT.  S.  vs.  Masters, 
264  F.  250;  see  also  U.  S.  vs.  One,  259  F.  645;  U.  S.  vs. 
One,  259  F.  641;  U.  S.  vs.  One,  257  F.  251;  U.  S.  vs.  Auto, 
279  F.  891;  Ford  vs.  U.  S.,  260  F.  657;  272  F.  491;  U.  S. 
vs.  One,  262  F.  375;  273  F.  253;  273  F.  275;  U.  S.  vs.  One 
Machine,  267  F.  501;  U.  S.  vs.  Hydes,  267  F.  470;  vehicle 
,  will  be  condemned  when,  U.  S.  vs.  Burns,  270  F.  681. 

The  Act  does  not  authorize  the  forfeiture  of  a  steam- 
ship, The  Saxon,  269  F.  639. 

The  Act  provides  that  the  libeled  carriage  or  property 
may  be  released  on  bond,  U.  S.  vs.  Chevrolet,  267  F.  1021. 

Auto  used  by  chauffeur  for  unlawful  transportation 
without  owner's  knowledge  mav  be  forfeited.  Lewis  vs. 
Me(  'ailliv,  274  F.  496;  see  also  U.  S.  vs.  One,  274  F.  473; 
U.  S.  vs.  One,  274  F.  470. 

A  suit  cannot  be  maintained  under  section  3450,  for  the 
forfeiture  of  a  vehicle,  since  the  enactment  of  the  Na- 
tional Prohibition  Act,  U.  S.  vs.  One,  274  F.  926. 

Sec.  1105.  Volstead  Act  Repeals  Some  of  Revenue 
Laws.  Upon  the  question  of  the  repeal  of  existing  in- 
ternal revenue  statutes  by  the  Volstead  Act  there  has 
been  some  difference  in  the  holding  of  the  courts. 

In  U.  S.  vs.  Sacein,  269  F.  33,  it  was  held  that  the  dis- 
tillery law  was  not  repealed  by  the  Volstead  Act;  in 
U.  S.  vs.  Turner,  266  F.  248,  it  was  held  that  the  Volstead 
Act  did  not  repeal  the  statute  which  punishes  for  the  re- 
moval of  untaxed  liquors;  in  U.  S.  vs.  Yuginni,  266  F. 
746,  it  was  held  that  the  illicit  distilling  act  was  repealed 
by  the  pro  act,  also  in  Sanford  vs.  U.  S.,  274  F.  369;  in 
Violette  vs.  Walsh,  272  F.  1014,  it  was  held  that  the  act 
does  not  repeal  the  tax  statutes  as  there  was  no  presump- 
tion that  one  was  manufacturing  for  a  forbidden  purpose; 
in  Ketchum  vs.  U.  S.,  270  F.  416,  it  was  held  that  the  pro 
act  repeals  many  of  the  revenue  acts;  in  ex  parte  Law- 
rence, 273  F.  876,  it  was  held  that  the  pro  act  does  not 
repeal  the  revenue  acts;  in  U.  S.  vs.  Windham,  264  F.  376, 


Intoxicating  Liquoks.  507 

and  Farley  vs.  U.  S.,  269  F.  721,  it  is  held  that  the  act 
repeals  certain  of  the  revenue  measures  while  the  con- 
trary is  held  in  269  F.  820;  in  U.  S.  vs.  Stafoff,  268  F. 
417  and  U.  S.  vs.  Puhac,  268  F.  392,  it  was  held  that  the 
act  repeals  the  still  and  mash  statutes.  But  see  Duval  1 
vs.  Dyche,  275  F.  440. 

In  Tisch  vs.  U.  S.,  274  F.  208,  it  was  held  that  the  act 
does  not  effect  prior  offenses. 

Sec.  1106.    Decisions  Continued. 

Inducing',  etc.,  De  Moss  vs.  U.  S.,  250  F.  87;  Voves  vs. 
U.  S.,  249  F.  191. 

The  Volstead  Act  does  not  authorize  the  seizure  of  liq- 
uor owned  before  the  act  and  intended  for  personal  use, 
U.  S.  Supreme  Court,  November  8,  1920;  41  Sup.  Ct. 
Rep.  30. 

The  state  may  prohibit  even  for  personal  use  since  the 
passage  of  the  Webb-Kenyon  Act,  was  held  in  Clark  vs. 
Express  Company,  U.  S.  Sup.  Ct.  Jan.  1917,  but  it  is 
questioned  whether  this  applies  to  the  Volstead  Act.  In 
U.  S.  vs.  Peterson,  268  F.  864,  it  was  held  that  a  con- 
viction by  a  state  court  prevents  a  prosecution  by  the 
United  States  for  the  same  act. 

For  a  definition  of  peace  officers  under  the  act  see  U.  S. 
vs.  Viess,  273  F.  279. 

A  prohibition  agent  may  hold  an  iron  safe  for  a  rea- 
sonable time,  when  IT.  S.  vs.  Metzger,  270  F.  291. 

Prosecutions  may  be  had  under  this  law  by  informa- 
tion, Young  vs.  U.'S.,  272,  F.  967. 

The  state  may  go  more  rigidly  than  does  the  federal 
statutes,  270  F.  315. 

Evidence  secured  by  illegal  search  will  not  be  allowed  at 
the  trial,  267  F.  866,  also  see  illegal  search  and  seizure, 
herein,  under  Art.  4  of  the  Constitution. 

A  penalty  under  the  prohibition  act  must  be  collected\ 
by  suit  and  not  by  distress  warrant,  Kelly  vs.  Lewelling, 
274  F.  112. 

The  eighteenth  amendment  was  lawfully  adopted,  State 
vs.  Palmer,  U.  S.  Sup.  Ct.  June,  1920;  40  Sup.  Ct.  Hep. 
486;  method  of  ratifying  the  amendment,  Hawke  vs. 
Smith,  40  Sup.  Ct.  Rep.  495;  the  eighteenth  amendment 
does  not  abrogate  the  clue  process  provision  of  the  con- 


508  Federal  Criminal,  Law  Procedure. 

stitution  and  there  is  no  right  to  seize  in  the  home,  etc., 
U.  S.  vs.  Crossen,  264  F.  459.  National  pro.  act  is  con- 
stitutional, 274  F.  245. 

A  search  warrant  will  not  be  issued  on  belief,  etc.,  TJ. 
J3.  vs.  Rydowski,  267  F.  866. 

For  right  to  search  the  person  and  also  for  possession 
S see  U.  S.  vs.  Murphy,  264  F.  842,  and  Hunter  vs.  U.  S., 
264  F.  831. 

For  allegations  necessary  in  an  application  for  an  in- 
junction under  the  act  see  U.  S.  vs.  Cohn,  268  F.  423. 

Search  warrant  must  be  properly  issued  and  cannot  be 
issued  against  John  Doe,  U.  S.  vs.  Borkowski,  268  F.  408. 

Preserved  sweet  cider,  when  U.  S.  vs.  Dodsen,  268  F. 
397. 

Cider  which  exceeds  the  per  cent  is  sold  at  the  defend- 
ant's peril  since  intent  is  not  an  element  of  the  act,  U. 
S.  vs.  Mathie,  274  F.  225. 

Illegal  searches  and  seizures  must  not  be  used  in  evi- 
dence, U.  S.  vs.  Slusser,  270  F.  818. 

The  Alaska  Act  was  not  repealed  by  the  Volstead  Act, 
Abbate  vs.  U.  S.,  270  F.  735. 

Imprisonment  may  be  imposed  for  the  first  offense, 
Dusold  vs.  U.  S.,  270  F.  574. 

For  a  discussion  of  the  state  power  and  effect  on  the 
United  States  proceedings  and  vice  versa  see  U.  S.  vs. 
Holt,  270  F.  639  and  ex  parte  Finegan,  270  F.  665. 

Sec.  1107.  Opium,  or  Cocoa  Leaves,  and  Salts,  De- 
rivatives or  Preparations,  Continued. 

The  Act  of  February  24, 1919,  C.  18,  Sec.  1008,  provides 
for  the  forfeiture  and  confiscation  of  opium  and  cocoa 
leaves  and  all  of  their  salts  and  derivatives  and  com- 
pounds when  found  in  the  possession  of  any  person  or 
persons  charged  with  any  violation  of  the  Act  of  October 
1,  1890,  as  amended  by  the  Acts  of  March  3,  1917,  Feb- 
ruary 9,  1919,  and  January  17,  1914,  and  December  17, 
1914,  provided  such  person  Or  persons  be  convicted. 

The  act  also  provides  for  the  confiscation  and  forfeiture 
of  any  of  such  drugs  which  may  come  into  the  possession 
of  the  United  States  from  unknown  owners  in  the  en- 
forcement of  said  acts;   the  act  provides  that  such  drugs 


Intoxicating  Liquors.  509 

shall  not  be  destroyed  unless  they  are  of  no  value  for 
medical  or  scientific  purposes. 

Sec.  1108.    Narcotic  Decisions. 

Some  confusion  exists  as  to  whether  the  exceptions 
contained  in  the  Act  of  December  17,  1914,  Sec.  271  E, 
shall  be  negatived  in  the  indictment.  In  U.  S.  vs.  Lowen- 
thal,  257  F.  444,  holds  that  the  exceptions  need  not  be 
negatived  while  U.  S.  vs.  Carney,  228  F.  163,  holds  that 
they  must  be  negatived;  see  also  Thurston  vs.  U.  S.,  241 
F.  335;  U.  S.  vs.  Darcy,  243  F.  739;  U.  S.  vs.  Hammers, 
241  F.  542;  U.  S.  vs.  Jin,  225  F.  1003;  Fyke  vs.  U.  S., 
254  F.  227;  Oakes  vs.  U.  S.,  260  F.  830;  the  statute  with 
the  exception,  of  section  8  thereof,  is  constitutional,  U. 
S.  vs.  Jin,  253  F.  213;  Fyke  vs.  U.  S.,  254  F.  227;  Baldwin 
vs.  U.  S.,  238  F.  794;  U.  S.  vs.  Jin,  241  U.  S.,  394;  U.  S. 
vs.  Doremus,  U.  S.  Sup.  Ct.  March  3,  1919;  that  parts  of 
the  act  are  unconstitutional,  U.  S.  vs.  Denker,  255  F.  339; 
Blunt  vs.  U.  S.,  255  F.  332. 

This  act,  the  act  of  1914,  does  not  interfere  with  the 
older  statutes  relating  to  opium,  Gwee  Woe  vs.  IT.  S.,  250 
F.  428. 

The  act  of  Jan.  17,  1914,  advised  penalties  for  importa- 
tion and  for  sending  to  China  opium,  pages  2011-13, 
Barnes  1919  Code. 

The  state  can  also  regulate  the  opium  traffic  or  dealings 
in  narcotics,  State  vs.  Mortinson,  41  Sup.  Ct.  Rep.  425. 

It  is  not  necessary  to  allege  the  defrauding  of  the  gov- 
ernment in  an  indictment,  Hovt  vs.  U.  S.,  273  F.  792; 
Barbot  vs.  U.  S.,  273  F.  919. 

It  was  not  intended  that  the  act  should  punish  for  pos- 
session for  one's  personal  use,  U.  S.  vs.  Woods,  224  F. 
278;  Pierriero  vs.  U.  S.,  271  F.  912;  U.  S.  vs.  Jin  Fuev 
Moy,  Sup.  Ct.  U.  S.  Oct.  Term,  1915;  241  U.  S.,  394;  U. 
S.  vs.  Ah  Hung,  243  F.  762;  U.  S.  vs.  Wilson,  225  F.  82.^ 

For  cases  treating  of  a  conspiracy  to  violate  this  sec- 
tion and  to  import  see  Proffitt  vs.  U.  S.,  264  F.  299;  Wal- 
lace vs.  U.  S.,  243  F.  300;  Shepard  vs.  U.  S.,  236  F.  73. 

The  act  relates  to  and  covers  "every  person,"  Wilson 
vs.  U.  S.,  229  F.  344. 

The  court  will  take  judicial  notice  that  opium  is  not 
grown  in  the  United  States,  U.  S.  vs.  Brown,  224  F.  135, 
but  see  Contra  241  U.  S.  399. 


510  Federal  Criminal  Law  Procedure. 

The  writing  of  prescriptions  is  not  a  violation,  Fore- 
man vs.  U.  S.,  255  F.  621;  U.  S.  vs.  Doremus,  246  F.  958; 
Hughes  vs.  U.  S.,  253  F.  543;  U.  S.  vs.  Reynolds,  244  F. 
991. 

But  such  prescription  must  be  in  good  faith  and  must 
not  in  fact  be  a  method  for  selling,  if  so  such  course  would 
constitute  a  violation,  Jin  Foey  Moy  vs.  U.  S.,  41  Sup. 
Ct.  Eep.  98;  U.  S.  vs.  Charter,  227  F.  331;  Tucker  vs. 
Williamson,  229  F.  201;  U.  S.  vs.  Curtis,  229  F.  288;  U. 
S.  vs.  Hoyt,  255  F.  927;  Webb  vs.  U.  S.,  IT.  S.  Sup.  Ct. 
March  1919;  Melanson  vs.  U.  S.,  256  F.  783;  Doremus 
vs.  U.  S.,  262  F.  849;  Trader  vs.  U.  S.,  260  F.  923. 

For  a  failure  to  keep  duplicate  orders  see  237  F.  730; 
a  physician  who  keeps  for  his  "own  use"  not  in  violation, 
U.  S.  vs.  Parsons,  261  F.  223;  an  offense  may  be  based  on 
a  single  sale,  Hosier  vs.  U.  S.,  260  F.  155. 

An  indictment  which  charges  sales  and  quantities  to 
persons  unknown  held  sufficient  in  Gregory  vs.  U.  S.,  272 
F.  119;  for  an  indictment  decision  see  Stetson  vs.  U.  S., 
257  F.  689;  also  U.  S.  vs.  Friedman,  224  F.  276;  also  a 
druggist  is  not  always  protected  by  a  prescription.  It 
must  be  shown  to  be  in  good  faith,  Friedman  vs.  U.  S., 
260  F.  388. 

For  form  of  indictment  for  sale  in  "original"  package 
see  Dean  vs.  U.  S.,  266  F.  694. 


CHAPTER  XIII. 

SLAVE  TRADE  AND  PEONAGE. 

§  272.  Legislation  Founded  on  Amendments. 

273.  Confining  or  Detaining  Slaves  on  Board  Vessel. 

274.  Seizing  Slaves  on  Foreign  Shore. 

275.  Bringing  Slaves  Into  the  United  States. 

276.  Equipping  Vessels  for  Slave  Trade. 

277.  Transporting  Persons  to  be  held  as  Slaves. 

278.  Hovering  on  Coast  With   Slaves  on  Board. 

279.  Serving  in  Vessels  Engaged  in  Slave  Trade. 

280.  Receiving    or    Carrying    Away    any    Person    to    be    Held    as    a 

Slave. 

281.  Equipping,   Etc.,  Vessels  for   Slave   Trade. 

282.  Penalty  on  Persons  Building,  Equipping,  Etc.,  Vessels. 

283.  Forfeiture  of  Vessel  Transporting  Slaves. 

284.  Receiving  Persons  on  Board    to  be  Sold  as  Slaves. 

285.  Vessel  Found  Hovering  on  Coast. 

286.  Forfeiture  of  Interest  in  Vessels  Transporting  Slaves. 

287.  Seizure  of  Vessels  Engaged  in  the  Slave  Trade. 

288.  Proceeds  of  Condemned  Vessels — How  Distributed. 

289.  Disposal  of  Persons  Found  on  Board  Seized  Vessels. 

290.  Apprehension  of  Officers  and  Crew. 

291.  Removal  of  Persons  Delivered  from  Seized  Vessels. 

292.  To  What  Port  Captured  Vessel  Sent. 

293.  When  Owners  of  Foreign  Vessels  Shall  Give  Bond. 

294.  Instructions  to  Commanders  of  Armed  Vessels. 

295.  Kidnapping. 

296.  Holding  or  Returning  to  Peonage. 

296a.  Involuntary  Servitude,  Etc., — Meaning  of. 

297.  Obstructing  Execution  of  Above. 

298.  Bringing  Kidnapped  Persons  Into  the  United  States. 

§  272.  Closely  akin  to  the  offenses  against  the  elective 
franchise  and  civil  rights  of  citizens  heretofore  treated  in 
Chapter  X.,  are  some  of  the  offenses  to  be  treated  in  this 
chapter;  both  of  which  arise  by  reason  of  legislation 
under  the  authority  of  the  Thirteenth  and  Fourteenth 
Amendments  to  the  Constitution. 

§  273.  Confining  or  Detaining  Slaves  on  Board  Ves- 
sel.— Section  5375  of  the  1878  Statutes,  is  practically  re- 
enacted  in  the  new  Code,  as  Section  246,  with  the  excep- 

(511) 


512  Federal  Criminal  Law  Procedure. 

tion  that  the  word  "person"  is  substituted  for  the  words 
"negro  or  mulatto;"  and  such  new  section  is  as  follows: 

"See.  246.  Whoever,  being  of  the  crew  or  ship's  company  of  any- 
foreign  vessel  engaged  in  the  slave  trade,  or  being  of  the  crew  or 
ship's  company  of  any  vessel  owned  wholly  or  in  part,  or  navigated 
for  or  in  behalf  of  any  citizen  of  the  United  States,  forcibly  confines 
or  detains  on  board  such  vessel  any  person  as  a  slave,  or,  on  board 
such  vessel,  offers  or  attempts  to  sell  as  a  slave  any  such  person,  or 
on  the  high  seas,  or  anywhere  on  tide  water,  transfers  or  delivers  to 
any  other  vessel  any  such  person  with  intent  to  make  such  person 
a  slave,  or  lands  or  delivers  on  shore  from  on  board  such  vessel  any 
person  with  intent  to  make  sale  of,  or  having  previously  sold  such 
person  as  a  slave,  is  a  pirate,  and  shall  be  imprisoned  for  life." 

In  prosecutions  under  this  section,  it  must  be  alleged 
and  shown  that  the  defendant  was  one  of  the  ship's  com- 
pany, and  that  he  received  or  detained  on  board  one  or 
more  persons  with  intent  to  make  slaves  of  them,  or  aided 
and  abetted  others  in  doing  so;  and,  of  course,  that  he 
was  a  citizen  of  the  United  States.  United  States  vs. 
Darnaud,  3  Wallace,  Jr.,  143.  In  United  States  vs.  Wes- 
terveldt,  5  Blatchf.,  30,  the  Court  said  that  there  are  four 
descriptions  of  the  offense  to  be  found  in  this  section: 
first,  a  seizing  the  negroes,  now  "persons;"  second,  for- 
cibly bringing  and  carrying  them  on  board;  third,  de- 
coying them;  fourth,  receiving  them  on  board  of  the  ves- 
sel. 

It  is  the  intent  to  make  a  slave  that  constitutes  the  es- 
sentials of  the  offense.  Neither  the  seizing,  nor  forcibly 
bringing  or  carrying,  or  receiving,  a  person  on  board,  is 
any  offense  without  such  intent.  United  States  vs.  Bat- 
tiste,  Second  Summ.,  240;  United  States  vs.  Libby,  1  W. 
&  M.,  221;  United  States  vs.  Corrie,  Brun.  Col.  Cases, 
686,  25  Federal  Case  No.  14869.  In  the  Westervelt  case, 
cited  supra,  the  landing  and  seizing  of  negroes,  and  the 
forcibly  bringing  and  carrying  them  on  board  compre- 
hended the  use  of  force,  and,  therefore,  the  decoying  of 
them  and  the  receiving  them  on  board,  do  not  constitute 
force. 

It  is  entirely  immaterial,  under  the  Westervelt  case, 
under  U.  S.  vs.  Brown,  24  Federal  Case  No.  14656,  as  to 


Slave  Trade  and  Peonage.  513 

the  ownership  of  the  vessel,  if  the  defendant  is  an  Ameri- 
can citizen. 

§  274.  Seizing  Slaves  on  Foreign  Shore.— Old  Section 
5376  becomes  Section  247  of  the  new  Code,  in  the  follow- 
ing words: 

"Sec.  247.  Whoever,  being  of  the  crew  or  ship's  company  of  any 
foreign  vessel  engaged  in  the  slave  trade,  or  being  of  the  crew  or  ship's 
company  of  any  vessel  owned  in  whole  or  in  part,  or  navigated  for,  or 
o  nbehalf  of,  any  citizen  of  the  United  States,  lands  from  such  vessel, 
and  on  any  foreign  shore,  seizes  any  person  with  intent  to  make 
such  person  a  slave,  or  decoys,  or  forcibly  brings,  or  carries,  or 
receives  such  person  on  board  such  vessel,  with  like  intent,  is  a  pir- 
ate, and  shall  be  imprisoned  for  life." 

The  substitution  of  the  word  "person"  for  the  words 
"negro  or  mulatto"  is  made  in  the  new  law.  In  the  case 
of  the  United  States  vs.  Corrie,  25  Federal  Cases,  658, 
the  Court  held  that  even  though  a  person  was  on  board 
the  vessel  who  owned  the  negroes  or  mulattoes,  he  could 
not  be  convicted  or  punished  under  this  statute,  unless 
he  was  of  the  crew  or  ship's  company. 

§  275.  Bringing  Slaves  Into  the  United  States. — Old 
Section  5377  becomes  Section  248  of  the  new  Code,  with- 
out substantial  change,  except  that  the  words  "negro 
mulatto,  or  person  of  color"  become  simply  the  word 
' '  person : ' ' 

"Sec.  248.  Whoever  brings  within  the  jurisdiction  of  the  United 
States,  in  any  manner  whatsoever,  any  person  from  any  foreign 
kingdom  or  country,  or  from  sea,  or  holds,  sells,  or  otherwise  dis- 
poses of,  any  person  so  brought  in,  as  a  slave,  or  to  be  held  to  service 
or  labor,  shall  be  fined  not  more  than  ten  thousand  dollars,  one  half 
to  the  use  of  the  United  States  and  the  other  half  to  the  use  of  the 
party  who  prosecutes  the  indictment  to  effect;  and,  moreover,  shall 
be  imprisoned  not  more  than  seven  years." 

§  276.  Equipping  Vessels  for  Slave  Trade. — Section 
5378  of  the  old  statutes  becomes  Section  249  of  the  new 
Code,  with  the  change  of  the  words  "negro,  mulatto,  or 
person  of  color ' '  to  the  word  ' '  person : 


>> 


"Sec.  249.     Whoever  builds,  fits  out,  equips,  loads,  or  otherwise  pre- 
pares, or  sends  away,  either  as  master,  factor,  or  owner,  any  vessel, 
in  any  port  or  place  within  the  jurisdiction  of  the  United  States,  or 
33 


514  Federal  Criminal  Law  Procedure. 

causes  such  vessel  to  sail  from  any  port  or  place  whatsoever,  within 
such  jurisdiction,  for  the  purpose  of  procuring  any  person  from  any 
foreign  kingdom  or  country  to  be  transported  to  any  port  or  place 
whatsoever,  to  be  held,  sold,  or  otherwise  disposed  of  as  a  slave,  or 
held  to  service  or  labor,  shall  be  fined  not  more  than  five  thousand 
dollars,  one-half  to  the  use  of  the  United  States  and  the  other  half  to 
the  use  of  the  person  prosecuting  the  indictment  to  effect;  and  shall, 
moreover,  be  imprisoned  not  more  than  seven  years." 

§  277.  Transporting  Persons  to  Be  Held  as  Slaves. — 
Section  5379  of  the  old  Code  becomes  Section  250  of  the 
new  Code  in  the  following  words: 

"Sec.  250.  Whoever,  within  the  jurisdiction  of  the  United  States, 
takes  on  board,  receives,  or  transports  from  any  foreign  kingdom  or 
country,  or  from  sea,  any  person  in  any  vessel,  for  the  purpose  of 
holding,  selling,  or  otherwise  disposing  of  such  person  as  a  slave,  or 
to  be  held  to  service  or  labor,  shall  be  punished  as  prescribed  in  the 
section  last  preceding." 

The  change  in  this  section  is  made  by  the  substitution 
of  the  word  "person"  for  the  words  "negro,  mulatto,  or 
person  of  color." 

§  278.  Hovering  on  Coast  With  Slaves  on  Board. — 
Section  5380  of  the  old  statutes  becomes  Section  251  of 
the  new  Code  in  the  following  words: 

"Sec.  251.  Whoever,  being  the  captain,  master,  or  commander  of 
any  vessel  found  in  any  river,  port,  bay,  harbor,  or  on  the  high  seas, 
within  the  jurisdiction  of  the  United  States,  or  hovering  on  the  coast 
thereof,  having  on  board  any  person,  for  the  purpose  of  selling  such 
person  as  a  slave,  or  with  intent  to  land  such  person  for  any  such 
purpose,  shall  be  fined  not  more  than  ten  thousand  dollars  and  im- 
prisoned not  more  than  four  years." 

The  change  from  the  old  to  the  new  is  the  substitution 
of  the  word  "person"  for  the  words  "negro,  mulatto,  or 
person  of  color." 

§  279.  Serving  in  Vessels  Engaged  in  Slave  Trade. — 
Sections  5381  and  5382  of  the  old  Code  relate  to  slave 
trade,  and  their  salient  points  are  comprehended  in  new 
Section  252  in  the  following  words: 

"Sec.  252.  Whoever,  being  a  citizen  of  the  United  States,  or  other 
person  residing  therein,  voluntarily  serves  on  board  of  any  vessel  em- 
ployed or  made  use  of  in  the  transportation  of  slaves  from  any  foreign 


Slave  Trade  and  Peonage.  515 

country  or  place  to  another,  shall  be  fined  not  more  than  two  thou- 
sand dollars  and  imprisoned  not  more  than  two  years." 

§  280.  Receiving  or  Carrying  Away  Any  Person  to  Be 
Sold  or  Held  as  a  Slave.— Section  5524  of  the  old  statutes 
becomes  Section  253  of  the  new  Code,  in  the  following 
words: 

"Sec.  253.  Whoever,  being  the  master  or  owner  or  person  having 
charge  of  any  vessel,  receives  on  board  any  other  person,  with  the 
knowledge  or  intent  that  such  person  is  to  be  carried  from  any  place 
subject  to  the  jurisdiction  of  the  United  States  to  any  other  place, 
to  be  held  or  sold  as  a  slave,  or  carries  away  from  any  place  subject  to 
the  jurisdiction  of  the  United  States  any  such  person,  with  the  intent 
that  he  may  be  so  held  or  sold  as  a  slave,  shall  be  fined  not  more  than 
five  thousand  dollars,  or  imprisoned  not  more  than  five  years,  or  both." 

§  281.  Equipping,  Etc.  Vessels  for  Slave  Trade. — 
Section  5551  of  the  old  statutes  becomes  Section  245  of 
the  new  Code,  as  follows: 

"Sec.  254.  No  person  shall,  for  himself  or  for  another,  as  master, 
factor,  or  owner,  build,  fit,  equip,  load,  or  otherwise  prepare  any 
vessel  in  any  port  or  place  within  the  jurisdiction  of  the  United  States, 
or  cause  any  vessel  to  sail  from  any  port  or  place  within  the  juris- 
diction of  the  United  States  for  the  purpose  of  procuring  any  person 
from  any  foreign  kingdom,  place,  or  country  to  be  transported  to  any 
port  or  place  whatsoever,  to  be  held,  sold,  or  otherwise  disposed  of, 
as  a  slave,  or  to  be  held  to  service  or  labor;  and  every  vessel  so 
built,  fitted  out,  equipped,  laden,  or  otherwise  prepared,  with  her 
tackle,  apparel,  furniture,  and  lading,  shall  be  forfeited;  one  moiety 
to  the  use  of  the  United  States  and  the  other  to  the  use  of  the  person 
who  sues  for  the  forfeiture  and  prosecutes  the  same  to  effect." 

A  consideration  of  this  section  will  be  found  in  charge 
to  the  grand  jury,  30  Federal  Case  No.  18268,  and  30  Fed- 
eral Case  18269a. 

In  the  case  of  in  re  Sah  Quah,  31  Federal,  327,  Judge 
Dawson  held  that  this  legislation  was  founded  upon  the 
Thirteenth  Amendment  to  the  Constitution,  and  that  a 
custom  which  prevailed  among  the  uncivilized  tribes  of 
Indians  in  Alaska,  whereby  slaves  were  bought  and  sold 
and  held  in  servitude  against  their  will,  even  though  such 
Indians  were  not  citizens  of  the  United  States,  they  were 
dependent  subjects,  and  that  such  custom  and  servitude 
was  contrary  to  this  legislation,  and  contrary  to  the  Thir- 


516  Federal  Criminal  Law  Procedure. 

tenth  Amendment  to  the  Constitution,  and  that  a  per- 
son so  held  in  slavery  would  be  released  by  the  Court 
upon  writ  of  habeas  corpus. 

§  282.  Penalty  on  Persons  Building,  Equipping,  Etc. 
— Section  5552  of  the  old  Revised  Statutes  becomes  Sec- 
tion 255  in  the  new  Code,  as  follows: 

"Sec.  255.  Whoever  so  builds,  fits  out,  equips,  loads  or  otherwise 
prepares  or  sends  away  any  vessel,  knowing  or  intending  that  the 
same  shall  be  employed  in  such  trade  or  business,  contrary  to  the 
provisions  of  the  section  last  preceding,  or  in  any  way  aids  or  abets 
therein,  shall,  besides  the  forfeiture  of  the  vessel,  pay  the  sum  of 
two  thousand  dollars;  one  moiety  thereof  to  the  use  of  the  United 
States  and  the  other  moiety  thereof  to  the  use  of  the  person  who  sues 
for  and  prosecutes  the  same  to  effect." 

§  283.  Forfeiture  of  Vessel  Transporting  Slaves. — 
Section  5553  of  the  old  statutes  becomes  Section  256  of 
the  new  Code,  as  follows: 

"Sec.  256.  Every  vessel  employed  in  carrying  on  the  slave  trade 
or  on  which  is  received  or  transported  any  person  from  any  foreign 
kingdom  or  country,  or  from  sea,  for  the  purpose  of  holding,  selling 
or  otherwise  disposing  of  such  person  as  a  slave,  or  holding  such  per- 
son to  service  or  labor,  shall,  together  with  her  tackle,  apparel,  furni- 
ture, and  goods  and  effects  which  may  be  found  on  board,  or  which 
may  have  been  imported  thereon  in  the  same  voyage,  be  forfeited; 
one  moiety  to  the  use  of  the  United  States  and  the  other  to  the  use 
of  the  person  who  sues  for  and  prosecutes  the  forfeiture  to  effect." 

In  United  States  vs.  Schooner,  2  Paine,  25  Federal 
Cases,  No.  14755;  the  "Mary  Ann,"  16  Federal  Cases  No. 
9194;  and  the  Charge  of  to  the  Grand  Jury,  30  Federal 
Cases,  No.  18268,  will  be  found  a  consideration  of  this 
section.  The  5  Opinion  of  the  Attorneys  General,  page 
724,  also  contains  an  opinion  upon  seizure  for  engaging 
in  the  slave  trade. 

The  change  in  this  section  consists  in  the  substitution 
of  the  word  ' '  person ' '  for  the  words  ' '  negro,  mulatto,  or 
person  of  color." 

§  284.  Receiving  Persons  on  Board  to  be  Sold  as 
Slaves. — Old  Section  554  becomes  new  Section  257  in 
these  words: 

"Sec.  257.  Whoever,  being  a  citizen  of  the  United  States,  takes 
on  board,  receives,  or  transports  any  person  for  the  purpose  of  selling 


Slave  Trade  and  Peonage.         517 

such  person  as  a  slave  shall,  in  addition  to  the  forfeiture  of  the  ves- 
sel, pay  for  each  person  so  received  on  board  or  transported  the  sum 
of  two  hundred  dollars,  to  be  recovered  in  any  court  of  the  United 
States;  the  one  moiety  thereof  to  the  use  of  the  United  States  and 
the  other  moiety  to  the  use  of  the  person  who  sues  for  and  prose- 
cutes the  same  to  effect." 

The  change  in  this  section  consists  in  the  substitution 
of  the  word  "person"  for  the  words  "negro,  mulatto,  or 
person  of  color. ' ' 

§  285.  Vessel  Found  Hovering  on  Coast.— Old  Section 
5555  becomes  new  Section  258,  as  follows: 

Sec.  258.  Every  vessel  which  is  found  in  any  river,  port,  bay,  or 
harbor,  or  on  the  high  seas,  within  the  jurisdiction  of  the  United 
States,  or  hovering  on  the  coasts  thereof  and  having  on  board  any 
person,  with  intent  to  sell  such  person  as  a  slave,  or  with  intent  to 
land  the  same  for  that  purpose,  either  in  the  United  States,  or  else- 
where, shall,  together  with  her  tackle,  apparel,  furniture,  and  the  goods 
or  effects  on  board  of  her,  be  forfeited  to  the  United  States." 

The  change  in  this  section  consists  in  the  substitu- 
tion of  the  word  "person"  for  the  words  "negro,  mulatto, 
or  person  of  color." 

§  286.  Forfeiture  of  Interest  in  Vessels  Transporting 
Slaves. — Section  259  of  the  new  Code  takes  the  place  of 
Section  5556  of  the  old  statutes,  and  is  as  follows: 

"Sec.  259.  It  shall  be  unlawful  for  any  citizen  of  the  United  States, 
or  other  person  residing  therein,  or  under  the  jurisdiction  thereof, 
directly  or  indirectly  to  hold  or  have  any  right  or  property  in  any 
vessel  employed  or  made  use  of  in  the  transportation  or  carrying  of 
slaves  from  one  foreign  country  or  place  to  another,  and  any  such 
right  or  property  shall  be  forfeited,  and  may  be  libeled  and  condemn- 
ed for  the  use  of  the  person  suing  for  the  same.  Whoever  shall  vio- 
late the  prohibition  of  this  section  shall  also  forfeit  and  pay  a  sum 
of  money  equal  to  double  the  value  of  his  right  or  property  in  such 
vessel;  and  shall  also  forfeit  a  sum  of  money  equal  to  double  the 
value  of  the  interest  he  had  in  the  slaves  which  at  any  time  may  be 
transported  or  carried  in  such  vessels." 

§  287.  Seizure  of  Vessels  Engaged  in  the  Slave  Trade. 
— Section  5557  of  the  old  statutes  becomes  Section  260  of 
the  new  Code,  as  follows: 

"Sec.  260.  The  President  is  authorized,  when  he  deems  it  expedient, 
to  man  and  employ  any  of  the  armed  vessels  of  the  United  States  to 
cruise  wherever  he  may  judge  attempts  are  making  to  carry  on  the 


518  Federal  Criminal  Law  Procedure. 

slave  trade,  by  citizens  or  residents  of  the  United  States,  in  contraven- 
tion of  laws  prohibitory  of  the  same;  and,  in  such  case,  he  shall  in- 
struct the  commanders  of  such  armed  vessels  to  seize,  take,  and 
bring  into  any  port  of  the  United  States,  to  be  proceeded  against  ac- 
cording to  law,  all  American  vessels,  wheresoever  found,  which  may 
have  on  board,  or  which  may  be  intended  for  the  purpose  of  taking  on 
board,  or  of  transporting,  or  may  have  transported  any  person,  in 
violation  of  the  provisions  of  any  Act  of  Congress  prohibiting  the 
traffic  in  slaves." 

§  288.  Proceeds  of  Condemned  Vessels;  How  Dis- 
tributed.— Section  5558  of  the  old  statutes  is  so  modified 
in  Section  261  of  the  new  Code,  in  conformity  with  the 
abolition  of  prize  money  by  Congress,  as  to  require  the 
proceeds  of  all  forfeitures  to  be  paid  into  the  Treasury 
of  the  United   States,  and  is  in  the  following  words: 

"Sec.  261.  The  proceeds  of  all  vessels,  their  tackle,  apparel,  and 
furniture,  and  the  goods  and  effects  on  board  of  them,  which  are  so 
seized,  prosecuted,  and  condemned,  shall  be  paid  into  the  Treasury  of 
the  United  States." 

§  289.  Disposal  of  Persons  Found  on  Board  Seized 
Vessel. — Section  5559  of  the  old  Code,  becomes  Section 
262  of  the  new  Code,  by  the  mere  change  of  the  words 
"negro,  mullatto,  or  person  of  color,"  to  the  word  "per- 
son," and  is  in  the  following  words: 

"Sec.  262.  The  officers  of  the  vessel  making  such  seizure  shall  safely 
keep  every  person  found  on  board  of  any  vessel  so  seized,  taken,  or 
brought  into  port  for  condemnation,  and  shall  deliver  every  such  person 
to  the  marshal  of  the  district  into  which  he  may  be  brought,  if  into  a 
port  of  the  United  States,  or  if  elsewhere,  to  such  person  as  may  be 
lawfully  appointed  by  the  President,  in  the  manner  directed  by  law, 
transmitting  to  the  President,  as  soon  as  may  be  after  such  delivery, 
a  descriptive  list  of  such  persons,  in  order  that  he  may  give  directions 
for  the  disposal  of  them." 

§  290.  Apprehension  of  Officers  and  Crew. — Section 
5560  of  the  old  Code  becomes  Section  263  of  the  new  Code 
in  the  following  words: 

"Sec.  263.  The  commanders  of  such  commissioned  vessels  shall 
cause  to  be  apprehended  and  taken  into  custody  every  person  found 
on  board  of  such  offending  vessel  so  seized  and  taken,  being  of  the 
officers  or  crew  thereof,  and  him  convey,  as  soon  as  conveniently  may 


Slave  Trade  and  Peonage.  519 

be,  to  the  civil  authority  of  the  United  States,  to  be  proceeded  against 
in  due  course  of  law." 

§  291.  Removal  of  Persons  Delivered  from  Seized 
Vessels.— Section  5571  of  the  1878  Statutes,  by  substitut- 
ing the  word  " persons"  for  the  words  "negroes,  mulat- 
toes,  or  persons  of  color,"  becomes  Section  264  of  the 
new  Code,  as  follows: 

"Sec.  264.  The  President  is  authorized  to  make  sucti  regulations 
and  arrangements  as  he  may  deem  expedient  for  the  safe  keeping, 
support,  and  removal  beyond  the  limits  of  the  United  States  of  all 
such  persons  as  may  be  so  delivered  and  brought  within  its  juris- 
diction." 

§  292.  To  What  Port  Captured  Vessels  Sent.— Sec- 
tion 5563  of  the  old  Code,  by  the  addition  of  the  words 
"or  District,"  becomes  Section  265  of  the  new  Code,  as 
follows: 

"Sec.  265.  It  shall  be  the  duty  of  the  commander  of  any  armed 
vessel  of  the  United  States,  whenever  he  makes  any  capture  under 
the  preceding  provisions,  to  bring  the  vessel  and  her  cargo,  for  ad- 
judication, into  some  port  of  the  State,  Territory,  or  District  to  which 
such  vessel  so  captured  may  belong,  if  he  can  ascertain  the  same; 
if  not,  then  into  any  convenient  port  of  the  United  States." 

§  293.  When  Owners  of  Foreign  Vessels  Shall  Give 
Bond. — By  substituting  the  words  "clearing  from  any 
port  within  the  jurisdiction  of  the  United  States,"  for 
the  words  "clearing  out  for  any  of  the  coasts  or  king- 
doms of  Africa,"  Section  5564  of  the  old  statutes  becomes 
Section  266  of  the  new  Code,  as  follows: 

"Sec.  266.  Every  owner,  master,  or  factor  of  any  foreign  vessel 
clearing  from  any  port  within  the  jurisdiction  of  the  United  States, 
and  suspected  to  be  intended  for  the  slave  trade  and  the  suspicion 
being  declared  to  the  officer  of  the  customs  by  any  citizen,  on  oath, 
and  such  information  being  to  the  satisfaction  of  the  officer,  shall 
first  give  bond,  with  sufficient  sureties,  to  the  Treasurer  of  the  United 
States  that  none  of  the  natives  of  any  foreign  country  or  place  shall 
be  taken  on  board  such  vessel  to  be  transported  or  sold  as  slaves 
in  any  other  foreign  port  or  place  whatever,  within  nine  months 
thereafter." 

§  294.  Instructions  to  Commanders  of  Armed  Vessels. 
— By  changing  the  words  "negroes,  mulattoes,  and  per- 


520  Federal  Criminal  Law  Procedure. 

sons  of  color"  to  the  word  "persons,"  and  the  words 
"coast  of  Africa"  for  the  words  "country  from  which 
they  were  taken,"  Section  5567  of  the  old  statutes  be- 
comes Section  267  of  the  new  Code,  as  follows: 

"Sec.  267.  The  President  is  authorized  to  issue  instructions  to  the 
commanders  of  armed  vessels  of  the  United  States,  directing  them, 
whenever  it  is  practicable,  and  under  such  rules  and  regulations  as 
he  may  prescribe,  to  proceed  directly  to  the  country  from  which  they 
were  taken,  and  there  hand  over  to  the  agent  of  the  United  States 
all  such  persons,  delivered  from  on  board  vessels  seized  in  the  prose- 
cution of  the  slave  trade;  and  they  shall  afterward  bring  the  captured 
vessels  and  persons  engaged  in  the  prosecuting  such  trade  to  the 
United  States  for  trial  and  adjudication." 

§  295.  Kidnapping. — Section  5525  of  the  old  Code  be- 
comes Section  268  of  the  new  Code,  in  the  following 
words: 

"Sec.  268.  Whoever  kidnaps  or  carries  away  any  other  person, 
with  the  intent  that  such  other  person  be  sold  into  involuntary  ser- 
vitude, or  held  as  a  slave;  or  who  entices,  persuades,  or  induces  any 
other  person  to  go  on  beard  any  vessel  or  to  any  other  place  with  the 
intent  that  he  may  be  made  or  held  as  a  slave,  or  sent  out  of  the 
country  to  be  so  made  or  held;  or  who  in  any  way  knowingly  aids 
in  causing  any  other  person  to  be  held,  sold,  or  carried  away  to  be 
held  or  sold  as  a  slave,  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both." 

§  296.  Holding  or  Returning  to  Peonage. — The  most 
interesting  and  practicable  section  in  this  Chapter  is  Sec- 
tion 269  of  the  new  Code,  which  takes  the  place  of  old 
Section  5526,  and  is  in  the  following  words: 

"Sec.  269.  Whoever  holds,  arrests,  returns,  or  causes  to  be  held, 
arrested,  or  returned,  or  in  any  manner  aids  in  the  arrest  or  return 
of  any  person  to  a  condition  of  peonage,  shall  be  fined  not  more  than 
five  thousand  dollars,  or  imprisoned  not  more  than  five  years,  or 
both." 

Judge  Newman,  in  United  States  vs.  Eberhart,  127  Fed- 
eral, 252,  held  that  this  statute  had  no  application  to  any 
State  or  Territory7  except  the  Territory  of  New  Mexico. 
By  implication,  this  was  overruled  by  United  States  vs. 
McClellan,  in  127  Federal,  971,  by  Judge  Speer,  and  was 
directly  overruled  by  the  Supreme  Court  of  the  United 


Slave  Trade  and  Peonage.  521 

States  in  Clyatt  vs.  United  States,  197  U.  S.,  207,  49  Law 
Ed.,  726;  the  Supreme  Court  saying,  in  substance,  that 
the  prohibition  against  peonage  in  any  State  or  Territory 
of  the  United  States,  contained  in  Sections  1990  and  5526 
of  the  old  Code,  was  authorized  by  the  provisions  of  the 
United  States  Constitution,  the  Thirteenth  Amendment 
forbidding  slavery  or  involuntary  servitude  within  the 
United  States,  or  any  place  subject  to  their  jurisdiction, 
and  granting  to  Congress  the  power  to  enforce  the  pro- 
hibition by  appropriate  legislation. 

The  statute,  it  will  be  noted,  comprehends  several  dif- 
ferent forms  of  peonage,  to  wit,  holding,  arresting,  re- 
turning, or  causing  to  be  held,  arrested  or  returned.  In 
the  Clyatt  case,  the  Supreme  Court  reversed  the  judg- 
ment of  conviction,  because  there  was  no  evidence  that 
the  peons  had  been  previously  held  in  peonage,  and  the 
indictment  charged  that  there  was  a  return  to  peonage. 
Of  course,  if  the  indictment  had  charged  holding  in  peon- 
age, without  returning  to  peonage,  evidence  would  doubt- 
less have  been  sufficient,  and  the  case  would  have  been 
affirmed.    The  Supreme  Court  in  the  Clyatt  case,  says: 

"That  which  is  contemplated  by  the  statute  is  compulsory  service, 
to  secure  the  payment  of  a  debt,  Is  this  legislation  within  the  power 
of  Congress?  It  may  be  conceded,  as  a  general  proposition,  that  the 
ordinary  relations  of  individual  to  individual  are  subject  to  the  con- 
trol of  the  States,  and  are  not  entrusted  to  the  general  Government, 
but  the  Thirteenth  Amendment,  adopted  as  an  outcome  of  the  Civil 
War,  reads. 

"  'Sec.  1.  Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime,  whereof  the  party  shall  have  been  duly  con- 
victed, shall  exist  within  the  United  States,  or  in  any  place  subject 
to  their  jurisdiction. 

"  'Sec.  2.  Congress  shall  have  the  power  to  enforce  this  Article  by 
appropriate   legislation.' 

This  Amendment  denounces  a  status  or  condition,  irrespective  of 
the  manner  or  authority  by  which  it  is  created.  The  prohibitions  of 
the  Fourteenth  and  Fifteenth  Amendments  are  largely  upon  the  acts 
of  the  States;  but  the  Thirteenth  Amendment  names  no  party  or 
authority,  but  simply  forbids  slavery  and  involuntary  servitude,  grants 
to  Congress  the  power  to  enforce  this  prohibition  by  appropriate  legis- 
lation." 

In  the  peonage  cases,  123  Federal,  671,  District  Judge 
Jones  defined  "the  condition  of  peonage"  to  be  to  hold  or 


522  Federal  Criminal  Law  Procedure. 

return  a  person  to  enforced  servitude,  wherein  the  servi- 
tor is  restrained  of  his  liberty,  and  compelled  to  labor  in 
liquidation  of  some  debt  or  obligation,  either  real  or  pre- 
tended, against  his  will. 

In  the  peonage  cases  just  cited,  and  in  the  peonage 
cases  by  Judge  Trieber,  136  Federal,  707 ;  it  was  held,  in 
substance,  that  it  was  entirely  immaterial  that  the  con- 
tract of  employment  was  voluntarily  made  by  the  laborer; 
and  it  was  entirely  immaterial  whether  it  was  made  for 
the  present  or  pre-existing  consideration.  In  other  words, 
when  the  person  desires  to  abandon  the  service,  from  that 
moment  on  the  holding  of  such  a  person  is  the  holding  of 
him  within  the  meaning  of  the  statute,  to  a  condition  of 
peonage.  So,  likewise,  District  Judge  Jones  held  that  to 
falsely  pretend  another  that  he  was  accused  of  crime,  and 
to  pretend  to  prevent  his  conviction  if  he  will  pay  a  sum 
of  monev,  etc.    all  come  within  the  statute. 

In  in  re  peonage  charge,  138  Federal,  636,  Section,  and 
United  States  vs.  Cole,  153  Federal,  801,  peonage  was  de- 
fined to  be  the  status  or  condition  of  compulsory  service, 
in  the  payment  of  an  alleged  indebtedness  by  the  peon 
to  his  master.  The  same  definition  is  practically  adopted 
in  United  States  vs.  McClellan,  127  Federal,  971. 

§  296a.  Involuntary  Servitude,  Etc.,  Meaning. — The 
words  "involuntary  servitude"  have  a  larger  meaning 
than  slavery  and  the  Thirteenth  Amendment  prohibited 
all  control  by  coercion  of  the  personal  service  of  one  man 
for  the  benefit  of  another.  A  state  statute  which  was 
passed  ostensibly  to  punish  fraud  will  not  be  maintained 
as  constitutional  if  its  natural  and  inevitable  purpose  is 
to  punish  for  crime  for  failing  to  perform  contracts  of 
labor,  thus  compelling  such  performance.  A  constitu- 
tional prohibition  cannot  be  transgressed  indirectly  by 
creating  a  statutory  presumption  any  more  than  by  direct 
enactment,  and  a  state  cannot  compel  involuntary  servi- 
tude in  carrying  out. contracts  of  personal  service  by 
creating  a  presumption  that  the  person  committing  the 
breach  is  guilty  of  intent  to  defraud  merely  because  he 
fails  to  perform  the  contract.  Bailey  vs.  State  of  Ala- 
bama, 219  U.  S.  219. 

Peonage  exists  when  convicted  person  are  compelled 


Slave  Teade  and  Peonage.  523 

to  labor  out  fines  resulting  from  civil  contracts.  U.  S.  vs. 
Reynolds,  U.  S.  Supreme  Court,  October  Term,  1914.  One 
cannot  compel  a  laborer  against  his  will  to  return  to  him 
and  worked  out  a  debt  owing  by  such  laborer.  Harlan 
vs.  U.  S.,  184  Federal,  702,  Same  case,  214  U.  S.,  519; 
same  case  Harlan  vs.  McGourin,  218  U.  S.,  442. 

Judge  Toulmin  in  U.  S.  vs.  Broughton,  213  Federal,  345, 
held  that  an  indictment  which  charged  in  substance  that 
the  defendant  had  become  surety  for  a  convict  against 
whom  a  fine  and  costs  had  been  assessed  and  took  said 
convict  to  labor  for  him  at  $6  per  month,  and  that  the 
defendant  threatened  the  convict  that  if  he, refused  to 
work  out  the  debt,  he  would  have  him  arrested  and  put 
in  jail,  and  that  the  convict  did  not  continue  to  work  for 
the  defendant  under  his  own  free  will,  did  not  state  an 
offense. 

Sec.  296  b.  Additional  Decisions  Under  Peonage  Stat- 
ute. 

By  a  divided  court  in  Taylor  vs.  U.  S.,  244  F.  321,  the 
Court  of  Appeals  for  the  fourth  circuit  held  that  the  act 
of  a  master  and  magistrate  in  conspiring  to  put  the  mas- 
ter's servant  in  a  condition  of  involuntary  servitude 
through  a  prosecution  for  breach  of  his  contract  of  em- 
ployment, in  order  to  require  him  to  perforin  his  con- 
tract to  work  one  year  for  the  master,  was  insufficient 
to  warrant  a  conviction. 

Circuit  Judge  Woods'  dissenting  opinion  to  such  hold- 
ing is  a  very  strong  presentation  of  the  soul  of  the  stat- 
ute and  really  may  be  the  law. 

In  Bernal  vs.  U.  S.,  241  F.  339,  it  was  held  that  a  hold- 
ing may  be  by  threats  and  fear. 

§  297.  Obstructing  Execution  of  Above. — Section  5527 
of  the  old  Code  becomes  Section  270  of  the  new  Code,  as 
follows : 

"Sec.  270.  Whoever  obstructs,  or  attempts  to  obstruct,  or  in  any 
way  interferes  with  or  prevents  the  enforcement  of  the  section  last 
preceding,  shall  be   liable  to   the  penalties   therein   prescribed." 

§  298.  Bringing  Kidnapped  Persons  Into  the  United 
States. — By  broadening  the  Act  of  June  23,  1874,  17 
Statute  at  Large,  251,  1  Supplement,  46,  to  extend  so  as 


524  Federal  Criminal  Law  Procedure. 

to  apply  to  any  place  subject  to  the  jurisdiction  of  the 
United  States  such  Act  becomes  Section  271  of  the  new 
Code,  as  follows: 

"Sec.  271.  Whoever  shall  knowingly  and  wilfully  bring  into  the 
United  States  or  any  place  subject  to  the  jurisdiction  thereof,  any 
person  inveigled  or  forcibly  kidnapped  in  any  other  country,  with  in- 
tent to  hold  such  person  so  inveigled  or  kidnapped  in  confinement  or 
to  any  involuntary  servitude;  or  whoever  shall  knowingly  and  wil- 
fully sell,  or  cause  to  be  sold,  into  any  condition  of  involuntary  servi- 
tude, any  other  person  for  any  term  whatever;  or  whoever  shall  know- 
ingly and  wilfully  hold  to  involuntary  servitude  any  person  so  brought 
or  sold,  shall  be  fined  not  more  than  five  thousand  dollars  and  im- 
prisoned not  more  than  five  years." 


CHAPTER  XIV. 

OFFENSES    WITHIN   THE   ADMIRALTY    MARITIME   AND    TERRI- 
TORIAL JURISDICTION  OF  THE  UNITED  STATES. 

Note. — The  first  numbers  indicate  the  old  Sections;  then  fellows  a 
dash,  and  after  the  dash  the  numbers  indicate  the  Sections  in  the  new 
Code. 

§  299.  Generally,  Federal  Territory. 

300.  Places   Defined:     New   Code,   272. 

301.  Murder:    5339—273. 

302.  Murder  Verdict:      29  Stat.  L.,  487. 

303.  Manslaughter:    5341—274. 

304.  Punishment  for  Murder  and  Manslaughter:    5339  and  5343 — 275. 

305.  Assault  with  Intent  to  Commit  Murder,  Rape,  Robbery,  Etc.: 

5346—276. 

306.  Attempt  to   Commit   Murder   or   Manslaughter:     5342 — 277. 

307.  Rape:    5343—278. 

308.  Having   Carnal   Knowledge    of    Female    Under    Sixteen:     New 

Code,  279. 

309.  Seduction  of  Female  Passenger  on  Vessel:     5349 — 280. 

310.  Payment    of    Fine    to    Female    Seduced;     Evidence    Required; 

Limitations  on  Indictment:     5350  and  5351 — 281. 

311.  Punishment  for  Loss  of  Life  by  Misconduct  of  Officers,  Owners, 

Charterers,    Etc.,    of   Vessels:     5344—282. 

312.  Maiming:    5348—283. 

313.  Robbery:    5370—284. 

3 j 4.     Arson  of  Dwelling  House:    5385—285. 

315.  Arson  of  Arsenal,  Etc.;     Other  Buildings,  Etc.:    5386—286. 

316.  Larceny:     5356—287. 

317     Receiving,   Etc.,   Stolen  Goods:     5357—288. 

318.     Laws   of   State   Adopted    for   Punishing   Wrongful    Acts,    Etc.: 

5391—289. 
318a.  Libel  not  Federal  Offense. 

§  299.  The  new  Code,  in  Section  272,  sets  forth  cer- 
tain specific  national  territory,  within  and  upon  which 
the  commission  of  the  acts  mentioned  in  this  chapter 
become  exclusive  Federal  offenses.  The  offenses  upon 
which  Congress  has  legislated  under  the  head  of  admi- 
ralty, maritime,  and  territorial  jurisdiction  of  the  Federal 
Government  are  murder,  manslaughter,  intent  to  mur- 
der, rape,  robbery,  certain  carnal  knowledge  of  the  fe- 
male, loss  of  life  by  misconduct  of  the  officers  of  a  vessel, 

(525) 


526  Federal  Criminal'  Law  Procedure. 

maiming,  arson,  larceny,  receiving  stolen  goods,  and  a 
general  statute,  which  creates  a  Federal  offense  of  every 
State  offense  not  herein  mentioned,  when  the  same  is 
committed  within  the  limits  spoken  or. 

§  300.  The  Places  Defined.— Section  272  of  the  new 
Code,  which  makes  unnecessary  a  repetition  of  the  place 
in  defining  each  separate  offense,  reads  as  follows: 

"Sec.  272.  The  crimes  and  offenses  defined  in  this  chapter  shall 
be  punished  as  herein  prescribed: 

"First.  When  committed  upon  the  high  seas,  or  on  any  other  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the  United  States 
and  out  of  the  jurisdiction  of  any  particular  State,  or  when  committed 
within  the  admiralty  and  maritime  jurisdiction  of  the  United  States 
and  out  of  the  jurisdiction  of  any  particular  State  on  board  any 
vessel  belonging  in  whole  or  in  part  to  the  United  States  or  any  citi- 
zen thereof,  or  to  any  corporation  created  by  or  under  the  laws  of  the 
United  States,  or  of  any  State,  Territory,  or  District  thereof. 

"Second.  When  committed  upon  any  vessel  registered,  licensed, 
or  enrolled  under  the  laws  of  the  United  States,  and  being  on  a  voy- 
age upon  the  waters  of  any  of  the  Great  Lakes,  namely:  Lake  Supe- 
rior, Lake  Michigan,  Lake  Huron,  Lake  Saint  Clair,  Lake  Erie,  Lake 
Ontario,  or  any  of  the  waters  connecting  any  of  said  lakes,  or  upon 
the  River  Saint  Lawrence  where  the  same  constitutes  the  Internation- 
al boundary  line. 

"Third.  When  committed  within  or  on  any  lands  reserved  or  ac- 
quired for  the  exclusive  use  of  the  United  States,  and  under  the  exclu- 
sive jurisdiction  thereof,  or  any  place  purchased  or  otherwise  acquired 
by  the  United  States  by  consent  of  the  legislature  of  the  State  in 
which  the  same  shall  be,  for  the  erection  of  a  fort,  magazine,  arsenal, 
dock-yard,  or  other  needful  building. 

"Fourth.  On  any  island,  rock,  or  key,  containing  deposits  of  guano, 
which  may,  at  the  discretion  of  the  President,  be  considered  as  ap- 
pertaining to  the  United  States." 

While  this  section  is  new,  some  of  its  parts  are  to  be 
found  in  old  Statute  5339,  old  Statute  5570,  and  Article 
I.,  Section  8,  of  the  Constitution.  The  first  division  of 
the  section,  it  will  be  noted,  gives  the  jurisdiction  to  of- 
fenses upon  certain  waters.  The  second  division  gives 
jurisdiction  to  offenses  upon  vessels  when  on  certain 
waters.  The  third  division  gives  jurisdiction  over  of- 
fenses that  are  committed  upon  lands  over  which  the 
Government  has  acquired  exclusive  jurisdiction,  by  pur- 
chase or  otherwise;   but  it  must  be  understood  that  this 


Offense?  Within  Jueisdiction  op  United  States.  527 

division  does  not  mean  that  there  is  any  jurisdiction  in 
the  Federal  Government,  unless  there  be  cession  thereof 
under  the  Federal  and  State  laws.  Thus,  the  renting  of  a 
building  'in  which  the  Federal  Post-office  is  conducted 
would  give  no  jurisdiction  to  the  Federal  Government  for 
an  assault  committed  within  that  building  by  one  private 
citizen  upon  another  private  citizen.  The  jurisdiction  of 
the  Government  to  punish  one  who  assaulted  the  post- 
master in  the  performance  of  his  official  duties,  rests 
upon  an  entirely  different  statute,  and  is  not  grounded 
upon  the  section  now  being  noticed.  District  Judge 
Whitson,  in  United  States  vs.  Tully,  140  Federal,  899, 
held  in  substance,  that  the  jurisdiction  of  a  Federal  Court 
to  try  a  person  for  a  criminal  offense  on  the  ground  that 
it  was  committed  within  a  fort  or  military  reservation, 
such  fort  or  reservation  must  have  been  established  by 
law,  as  contemplated  by  Article  I.,  Section  8,  of  the 
Constitution,  either  by  purchase,  with  the  consent  of  the 
Legislature  of  the  State,  or  by  reservation  of  public  lands 
therefor  by  compact  with  the  State  at  the  time  of  its 
admission,  and  exclusive  jurisdiction  over  the  same  must 
have  been  reserved  to  the  United  States,  either  by  ex- 
press words  or  necessary  implication.  Judge  Maxey,  in 
111  Federal,  630,  United  States  vs.  Lewis,  held  in  sub- 
stance, that  whether  a  homicide  committed  within  the 
boundaries  of  a  State  constitutes  an  offense  against  the 
laws  of  the  United  States,  of  which  a  Federal  Court  has 
jurisdiction,  depends  on  two  questions:  first,  whether 
there  has  been  such  a  cession  by  the  State  to  the  United 
States  of  the  territory  upon  which  the  act  alleged  to 
constitute  the  crime  was  committed,  as  to  render  such 
territory  a  place  or  district  or  country  under  the  exclusive 
jurisdiction  of  the  United  States,  which  is  a  question  of 
law  for  the  Court;  and,  second,  if  such  cession  was  made, 
whether  the  act  was  committed  within  the  territory  so 
ceded,  which  is  a  question  of  fact  to  be  submitted  to  the 
jury.  In  United  States  vs.  Carter,  84  Federal,  622,  the 
Court  held  that  a  defendant  was  properly  indicted  in  the 
Federal  jurisdiction  for  a  murder  committed  on  board 
the  United  States  battle-ship  "Indiana,"  then  moored 
at  Cob  Dock,  being  within  territory  which  had  not  been 


528  Federal  Criminal  Law  Procedure. 

purchased  by  the  United  States,  but  over  which  exclusive 
jurisdiction  had  been  ceded  to  the  United  States  by  the 
New  York  Legislature.  In  United  States  vs.  Hewecker, 
79  Federal,  page  59,  the  Court  held  that  where  a  seaman 
on  an  American  schooner  was  indicted  for  having  shot, 
in  the  harbor  of  Havana,  one  Miller,  who  died  therefrom 
in  the  hospital  three  days  afterwards,  at  Havana,  on 
January  21,  1892,  and  the  indictment  was  not  found  un- 
til March  10,  1896;  the  defendant,  in  the  meantime,  hav- 
ing been  imprisoned  in  Havana,  upon  conviction  for  an 
assault,  and  on  the  expiration  of  his  sentence  delivered 
to  the  United  States  authorities,  that  the  defendant  was 
not  a  fugitive  from  justice,  under  Section  1045,  so  as  to 
be  excepted  from  the  exemption  of  indictment  after  three 
years,  and  that  the  death,  having  taken  place  on  land 
within  a  foreign  jurisdiction,  the  case  was  not  one  of 
wilful  murder  at  Common  Law,  under  the  Federal  au- 
thorities; and  that  the  United  States  statute,  Section 
5339,  though  making  the  offense  punishable  with  death, 
neither  declares  it  to  be  murder,  nor  does  it  limit  that 
offense  to  all  cases  within  a  year  and  a  day,  which  at 
Common  Law  was  an  essential  element  of  the  offense 
of  murder;  and,  therefore,  that  the  case  was  not  one 
of  wilful  murder,  and  the  indictment  was  barred  by  the 
three-year  limitation. 

A  cession  by  a  State  to  the  United  States  of  "exclusive 
jurisdiction"  over  certain  land,  providing  that  the  State 
shall  retain  concurrent  jurisdiction  with  the  United 
States,  so  far  that  the  process,  civil  or  criminal,  issued 
under  the  authority  of  the  State  may  be  executed  by  the 
State  officers  upon  any  person  amenable  to  the  same, 
within  the  limits  of  the  land  so  ceded,  confers  on  the 
United  States  exclusive  jurisdiction  within  the  meaning 
of  Revised  Statutes  5339,  United  States  vs.  Meagher,  37 
Federal,  875.  Of  course,  the  burden  is  on  the  Govern- 
ment to  show  that  the  crime  was  committed  on  land 
which  was  under  the  exclusive  jurisdiction  of  the  United 
States. 

In  Cook  vs.  United  States,  138  U.  S.,  page  185,  34  Law 
Edition,  906,  it  was  held  that  a  publi?  land  strip  lying 
between  Texas  and  New  Mexico  and  Colorado  and  Kan- 


Offenses  Within  Jurisdiction  of  United  States.  529 

sas,  over  which  jurisdiction  had  been  vested  in  the  Unit- 
ed States  after  the  commission  of  the  offense  of  murder 
thereon,  was  properly  within  the  control  of  the  Federal 
Courts,  and  the  offense  punishable  therein. 

The  fourth  division  relates  to  offenses  upon  certain  is- 
lands, rocks,  or  keys,  which  contain  deposits  of  guano, 
the  beginning  of  which  recognition  was  old  Statutes  5570, 
and  is  the  extending  of  sovereignty  by  the  political  pow- 
er of  the  Government.  In  other  words,  by  the  law  of 
nations,  dominion  of  new  territory  may  be  acquired  by 
discovery  and  occupation,  as  well  as  by  cession  or  con- 
quest. 

In  the  case  of  United  States  vs.  Rogers,  150  U.  S.,  249, 
37  Law  Ed.,  page  1071,  the  Supreme  Court  held  that  the 
term  "high  seas,"  as  used  in  old  Section  5346,  is  ap- 
plicable to  the  open  unenclosed  waters  of  the  Great  Lakes, 
between  which  the  Detroit  River  is  a  connecting  stream; 
and  that  Court,  in  the  same  case,  also  held  that  a  vessel 
is  deemed  part  of  the  territory  of  the  country  to  which 
she  belongs,  and  that  the  Courts  of  the  United  States  have 
jurisdiction,  under  United  States  Revised  Statutes  5346, 
to  try  a  person  for  assault  with  a  dangerous  weapon, 
committed  on  a  vessel  belonging  to  a  citizen  of  the  Unit- 
ed States,  when  such  vessel  is  in  the  Detroit  River,  out 
of  the  jurisdiction  of  any  particular  State,  and  within 
the  territorial  limits  of  the  Dominion  of  Canada.  This 
decision  seems  to  overrule  the  case  of  United  States  vs. 
Rogers,  in  the  46  Federal,  page  1,  and  the  case  of  ex 
parte  Byers,  32  Federal,  404,  where  the  Court  denied  a 
like  jurisdiction. 

It  is  determined,  in  United  States  vs.  Peterson,  64  Fed- 
eral, 145,  that  the  District  Court  of  the  Eastern  District 
of  Wisconsin  has  no  jurisdiction  of  an  indictment  for 
an  assault  committed  on  a  vessel  on  Lake  Huron,  within 
the  boundary  of  the  jurisdiction  of  the  Eastern  District 
of  Michigan.  In  other  words,  the  indictment  should  have 
been  prosecuted  in  Michigan,  instead  of  Wisconsin,  and 
Judge  Seaman  reviews  the  Byers  case  and  the  Rogers 
case,  cited  supra. 

In  Jones  vs.  United  States,  137  U.  S.,  202,  34  Law  Ed., 
691,  the  Supreme  Court  maintains  the  constitutionality  of 

n 


530  Federal  Criminal  Law  Procedure. 

jurisdiction  by  discovery,  and  incidentally  Section  5570 
of  the  old  Code,  and,  therefore,  the  fourth  division  of  the 
present  section.    The  Court  held  in  that  case,  that, 

"All  courts  of  justice  are  bound  to  take  judicial  notice  of  territoral 
extent  of  the  jurisdiction  exercised  by  the  Government  whose  laws 
they  administer,  or  of  its  recognition  or  denial  of  the  sovereignty  of 
a  foreign  power,  as  appearing  from  the  public  acts  of  the  legislature 
and  executive,  although  those  acts  are  not  formally  put  in  evidence, 
nor  in  accord  with  the  pleadings." 

And  for  this  purpose  of  judicially  knowing,  the  judges 
may  refresh  their  memory  and  inform  their  conscience 
from  such  sources  as  they  may  deem  most  trustworthy. 

Under  the  authority  of  the  United  States  vs.  Battle,  154 
Federal,  540,  which  was  an  indictment  for  murder,  al- 
leged to  have  been  committed  on  a  plot  of  ground  in 
the  city  of  Macon,  Georgia,  which  had  been  conveyed  to 
the  United  States  for  the  erection  of  a  post-office  and 
Federal  Court  building,  over  which  territory  the  State 
had  surrendered  jurisdiction,  reserving  the  right  to  serve 
process  and  apprehend  offenders  there,  that  it  is  not  nec- 
essary in  the  indictment  to  plead  the  act  of  the  General 
Assembly  or  Legislature,  because  that  is  the  general  law, 
which  it  is  presumed  not  only  the  Court,  but  the  defend- 
ant, knew;  nor  is  it  necessary  to  plead  the  title  of  the 
Government  in  the  indictment.  The  allegation  that  the 
crime  was  maliciously,  unlawfully,  and  feloniously  done, 
with  the  other  ingredients  of  the  offense,  is  sufficient. 
This  case  was  affirmed  in  Battle  vs.  United  States,  209 
U.  S.,  page  36,  52  Law  Ed.,  page  671. 

§  301.  Murder.— The  old  Statute  5339  gave  no  defini- 
tion of  the  crime  of  murder,  and  thus  the  Courts  were 
driven  to  the  Common  Law  for  such  definition.  New 
Section  273,  however,  defines  murder,  and  somewhat  en- 
larges the  Common  Law  definition,  and  appropriates 
many  of  the  terms  of  the  statutes  of  a  large  majority  of 
the  various  states,  and  such  section  reads  as  follows: 

"Sec.  273.  Murder  is  the  unlawful  killing  of  a  human  being  with 
malice  aforethought.  Every  murder  perpetrated  by  poison,  lying  in 
wait,  or  any  other  kind  of  wilful,  deliberate,  malicious,  and  premedi- 
tated  killing;     or   committed    in   the   perpetartion   of,    or    attempt   to 


Offenses  Within  Jurisdiction  of  United  States.  531 

perpetrate,  any  arson,  rape,  burglary,  or  robbery;  or  perpetrated  from 
a  premeditated  design  unlawfully  and  maliciously  to  effect  the  death 
of  any  human  being  other  than  him  who  is  killed,  is  murder  in  the 
first  degree.     Any  other  murder  is  murder  in  the  second  degree." 

The  Common  Law  definition  of  murder  was, 

"Murder  is  where  a  person  of  sound  memory  and  discretion,  unlaw- 
fully and  feloniously  kills  any  human  being  in  the  peace  of  the  sover- 
eign, with  malice  propense,  or  aforethought,  express  or  implied." 

Mr.  Bishop,  in  Volume  II.,  of  his  New  Criminal  Law, 
treats  of  this  and  other  definitions  of  murder,  setting 
forth  the  definitions  used  by  Lord  Coke,  as  follows: 

"Murder  is  when  a  man  of  sound  memory  and  of  the  age  of  discre- 
tion, unlawfully  killeth,  within  any  county  of  the  realm,  any  reason- 
able creature  in  rerum  natura  under  the  King's  peace,  with  malice 
aforethought,  either  expressed  by  the  party,  or  implied  by  law,  so  as 
the  party  wounded  or  hurt,  etc.,  die  of  the  wound  or  hurt,  etc.,  with- 
in a  year  and  a  day  after  the  same," 

and  Lord  Mansfield,  namely: 

"Murder  is  where  a  man  of  sound  sense,  unlawfully  killeth  another 
of  malice  aforethought,  either  express  or  implied." 

and  continues  by  saying  that  a  complete  definition  is  im- 
possible, but  that  it  must  include  an  understanding  of  the 
term  "malice  aforethought,"  which  term  means  an  in- 
tent to  take  life  without  excuse. 

Judge  Maxey,  in  United  States  vs.  Lewis,  111  Federal, 
630,  said: 

"Malice,  when  attempted  to  be  defined,  has  been  necessarily  given 
a  more  comprehensive  meaning  than  enmity  or  illwill  or  revenge, 
and  has  been  extended  so  as  to  include  all  those  states  of  mind  under 
which  the  killing  of  a  person  takes  place  without  any  cause  which 
will  in  law  justify  or  excuse  or  extenuate  the  homicide.  McCoy  vs. 
State,  25  Texas,  39.  Malice,  as  applied  to  the  offense  of  murder,  need 
not  denote  spite  or  malevolence,  hatred  or  illwill,  to  the  person  killed, 
nor  that  the  slayer  killed  his  victim  in  cold  blood,  as  with  settled 
design  and  premeditation.  Such  a  killing  would,  it  is  true,  be  mur- 
der; but  malice,  as  essential  to  the  crime  of  murder,  has  a  more  ex- 
tended meaning.  A  killing  flowing  from  an  evil  design  in  general 
may   be   of   malice,   and    constitute   murder;     as,    a   killing   resulting 


532  Fedeeal  Criminal  Law  Procedure. 

from  the  dictates  of  a  wicked,  depraved,  and  malignant  spirit — a 
heart  regardless  of  social  duty  and  fatally  bent  upon  mischief — may 
be  of  malice,  necessarily  implied  by  law  from  fact  of  the  killing,  with- 
out lawful  excuse,  and  sufficient  to  constitute  the  crime  of  murder, 
although  the  person  killing  may  have  had  no  spite  or  illwill  against 
the  deceased.  Malice,  as  thus  described,  is  either  express  or  implied. 
Express  malice  is  where  one  with  a  sedate  and  deliberate  mind,  and 
formed  design,  doth  kill  another,  which  formed  design  is  evidenceo 
by  external  circumstances,  discovering  that  inward  intention;  as, 
lying  in  wait,  antecedent  menances,  former  grudges,  and  concerted 
schemes  to  do  bodily  harm.  It  rarely,  if  ever,  occurs  that  express 
malice  is  proved  upon  the  trial  of  a  case.  The  existence  or  non- 
existence of  malice  is  a  matter  to  be  determined  by  tne  jury,  from  a 
consideration  of  all  the  facts  in  evidence.  The  proof  of  homicide,  as 
necessarily  involving  malice,  must  show  the  facts  under  which  the 
killing  was  effected,  and  from  the  whole  facts  and  circumstances 
surrounding  the  killing,  the  jury  infers  malice  or  its  absence.  Malice, 
in  connection  with  the  crime  of  killing,  is  but  another  name  for  a 
certain  condition  of  a  man's  heart  or  mind;  and  as  no  one  can  look 
into  the  heart  or  mind  of  another,  the  only  way  to  decide  upon  its 
condition  at  the  time  of  the  killing,  is  to  infer  it  from  the  surround- 
ing facts,  and  that  inference  is  one  of  fact  for  the  jury.  'Jordan 
vs.  State,  10  Texas,  492;  3  Russell  on  Crime,  sixth  edition,  pages 
1  and  2;  Stevenson  vs.  United  States,  162  U.  S.,  320,  40  Law  Ed.,  983; 
Wallace  vs.  United  States,  162  U.  S.,  476,  40  Law  Ed.,  1043.'  The 
malice  which  distinguishes  the  crime  of  murder  must  be  aforethought. 
It  implies  premeditation — a  prior  intent  to  do  the  act.  It  may  have 
existed  but  for  a  moment — an  inappreciably  brief  period  of  time, 
or  longer.  No  limit  has  been,  or  can  be,  fixed  as  to  its  duration.  If 
it  in  fact  exist  for  any  period,  however  brief,  the  killing  would  be 
murder;  but  in  malice  so  wanting,  the  homicide  could  not  be  of  a 
higher  grade  than  manslaughter." 

In  Battle  vs.  United  States,  209  U.  S.,  36,  52  Law  Ed., 
670,  the  Supreme  Court  affirmed  the  refusal  of  the  trial 
Court  to  give  requested  instructions  upon  the  law  of  jus- 
tifiable homicide  and  involuntary  homicide,  when,  ac- 
cording to  the  testimony  of  the  accused,  'the  death  was 
due  to  an  accident,  and  according  to  all  the  other  evi- 
dence, the  death  was  intentional  and  unjustified. 

In  considering  the  cases  that  are  hereafter  cited,  it  will 
be  borne  in  mind  that  the  original  Federal  Statute,  under 
which  the  case  arose,  contained  no  provision  for  murder 
in  the  second  degee;  in  other  words,  the  two  degrees  of 
homicide  were  murder  and  manslaughter. 


Offenses  Within  Jurisdiction  of  United  States.  533 

By  the  Common  Law,  both  time  and  place  were  re- 
quired to  be  alleged.  It  is  necessary  that  it  should  ap- 
pear that  the  death  transpired  within  a  year  and  a  day 
after  the  stroke,  and  the  place  of  the  death  equally  with 
that  of  the  stroke,  had  to  be  stated  to  show  jurisdiction 
in  the  Court.  The  controlling  element  which  distinguishes 
the  guilt  of  the  assailant  from  a  common  assault  was  the 
death,  within  a  year  and  a  day,  and  also  within  the  same 
jurisdiction.  Ball  vs.  United  States,  140  U.  S.,  136,  35 
Law  Ed.,  384.  So  far  as  the  present  statute  is  concerned, 
there  are  no  differences  upon  this  point  between  it  and 
the  old  statute,  upon  which  the  Ball  decision  was  ren- 
dered and  the  Common  Law  rules  with  reference  to  these 
matters  must,  therefore,  be  observed  under  the  new  stat- 
ute, in  both  pleading  and  proving  the  offense.  In  the 
case  of  United  States  vs.  Guiteau,  reported  in  1  Mackey, 
498,  the  Supreme  Court  of  the  District  of  Columbia  af- 
firmed a  conviction,  even  though  the  shot  was  fired  in 
the  District  of  Columbia  and  President  Garfield  died  in 
Maryland,  such  affirmance  being  based  upon  the  absorp- 
tion of  the  latest  English  statute  by  Maryland,  in  1801, 
which,  to  correct  the  original  technicality  of  the  Com- 
mon Law,  permitted  prosecution  in  either  the  realm  of  the 
stroke  or  the  realm  of  the  death.  Section  731  of  the  Fed- 
eral statutes,  which  allows  the  prosecution  of  an  offense 
against  the  United  States  in  either  the  county  in  which 
it  was  begun  or  in  the  county  in  which  it  was  completed, 
was  held  by  the  Supreme  Court  in  the  Ball  case,  even  if 
applicable  to  the  crime  of  murder,  not  to  apply  if  the 
stroke  were  given  in  one  district  and  the  death  ensued 
in  some  other  country  than  the  United  States.  In  St. 
Clair  vs.  United  States,  154  U.  S.,  134,  38  Law  Ed.?  936, 
the  Court  sustained  a  description  in  an  indictment  with 
reference  to  the  locality  of  the  offense,  when  it  showed 
that  it  was  committed  on  board  of  an  American  vessel 
on  the  high  seas,  within  the  jurisdiction  of  the  Court  and 
the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  not  within  the  jurisdiction  of  any  particular 
State. 

Sec.  301  a.     Murder — Homicide — Defenses. 

One  attempting  robbery  cannot  claim  self  defense. 
Turner  vs.  U.  S.,  272  F.  112. 


534  Federal  Criminal  Law  Procedure. 

For  self  defense  and  provocation  see  Huber  vs.  U.  S., 
259  F.  766. 

For  a  case  bearing  upon  homicide  by  the  careless  driv- 
ing of  an  automobile  see  Sinclair  vs.  U.  S.,  265  F.  991. 

§  302.  Verdict. — Under  the  Federal  practice,  the 
Court  may  sentence  the  defendant  to  a  manslaughter 
punishment  and  enter  a  judgment  for  manslaughter, 
upon  a  verdict  of  guilty  of  murder,  because  the  convic- 
tion of  the  higher  offense  includes  the  lower.  United 
States  vs.  Linnier,  125  Federal,  83. 

The  29  Statute  at  Large,  487,  Act  of  January  25,  1897, 
provides  that  in  all  cases  where  the  accused  is  found 
guilty  of  murder  or  of  rape,  the  jury  may  qualify  their 
verdict  by  adding  thereto,  "without  capital  punishment;" 
and  whenever  the  jury  shall  return  a  verdict  qualified 
as  aforesaid,  the  person  convicted  shall  be  sentenced  to 
imprisonment  at  hard  labor  for  life.  This  Act  was  re- 
viewed and  applied  as  being  permissible  in  the  case  of 
Winston  vs.  United  States,  172  Federal,  304,  43  Law 
Ed.,  456;  and  this  though  the  statute  provides  a  punish- 
ment of  death,  Section  275  of  the  new  Code. 

§  303.  Manslaughter. — The  old  manslaughter  statute, 
Section  5341,  is  so  changed  by  new  Section  274  as  to 
include  the  practical  elements  of  the  Common  Law 
definition  of  manslaughter  and  the  statutes  of  many  of 
the  States,  and  reads  as  follows: 

"Sec.  274.  Manslaughter  is  the  unlawful  killing  of  a  human  being 
without  malice.     It  is  of  two  kinds: 

"First.     Voluntary — upon  a  sudden  quarrel  or  heat  of  passion. 

"Second.  Involuntary — in  the  commission  of  an  unlawful  act  not 
amounting  to  a  felony,  or  in  the  commission  of  a  lawful  act  which 
might  produce  death,  in  an  unlawful  manner,  or  without  due  caution 
and  circumspection.  " 

At  Common  Law,  voluntary  manslaughter  was  the  un- 
lawful and  intentional  killing  of  another  without  malice 
on  sudden  quarrel  or  in  heat  of  passion.  Bishop,  in  his 
New  Criminal  Law,  second  volume,  page  425,  cites  sev- 
eral definitions,  and  notes  Hawkins'  definition,  which 
was  this:  homicide  against  the  life  of  another,  amount- 
ing to  felony,  is  either  with  or  without  malice.     That 


Offenses  Within  Jurisdiction  of  United  Staies.  535 

which  is  without  malice  is  called  manslaughter,  or  some- 
times chance-medley;  by  which  we  understand  such  kill- 
ing as  happens  either  on  a  sudden  quarrel  or  in  the  com- 
mission of  an  unlawful  act,  without  any  deliberate  in- 
tention of  committing  any  mischief  at  all.  Mr.  Bishop 
proposes  a  new  definition,  as  follows: 

"Manslaughter  is  any  such  dangerous  act  or  omission,  feloniously 
done  or  suffered  contrary  to  one's  legal  duty,  as  results  in  the  death 
of  a  human  being,  within  a  year  and  a  day." 

But  whatever  may  have  been  the  original  Common  Law 
definition,  the  statute  now  under  discussion  fixes  and  de- 
fines just  what  shall  be  manslaughter  in  the  Federal 
jurisdiction.  An  interesting  expression  of  the  Supreme 
Court,  in  Anderson  vs.  United  States,  170  U.  S.,  510,  42 
Law  Ed.,  1126,  will  be  of  value  here: 

"The  law,  in  recognition  of  the  frailty  of  human  nature,  regards 
a  homicide  committed  under  the  influence  of  sudden  passion  or  in 
hot  blood,  produced  by  adequate  cause,  and  before  a  reasonable  time 
has  elasped  for  the  blood  to  cool,  as  an  offense  of  a  less  heinous  char- 
acter than  murder;  but  if  there  be  sufficient  time  for  the  passion  to 
subside,  and  shaken  reason  to  resume  her  sway,  no  such  distinction 
can  be  entertained;  and  if  the  circumstances  showed  a  killing  with 
deliberate  mind  and  formed  design,  with  comprehension  of  the  act 
and  determination  to  perform  it,  the  elements  of  self-defense  being 
wanting,  the  act  is  murder.  Nor  is  the  presumption  of  malice  nega- 
tived by  previous  provocation,  having  no  casual  connection  with  the 
murderous  act,  or  separated  from  it  by  such  an  interval  of  time  as 
gives  reasonable  opportunity  for  the  excess  of  fury  to  moderate." 

In  other  words,  in  manslaughter,  malice  is  presumed  to 
be  absent  or  wanting,  and  the  act  is  imputed  to  the  in- 
firmity or  human  nature,  and  the  punishment  is,  there- 
fore, proportionately  lenient. 

The  Circuit  Court  of  Appeals  for  the  Fifth  Circuit,  in 
the  case  of  Roberts  vs.  United  States,  126  Federal,  897, 
speaking  through  Chief  Justice  Pardee,  affirmed  a  man- 
slaughter charge  by  District  Judge  Meek,  and  his  defi- 
nition thereof,  which  was  as  follows: 

"In  the  definition  of  manslaughter  contained  in  the  statute  the 
killing  must  be  done  unlawfully  and  wilfully.  The  term  'unlawfully,' 
as  here  used,  means  without  legal  excuse.     The  term  'wilfully'  here 


536  Federal  Criminal  Law  Procedure. 

means  done  wrongfully,  with  evil  intent.  It  means  any  act  which  a 
person  of  reasonable  knowledge  and  ability  must  know  to  be  contrary 
to  duty." 

The  statute,  it  will  be  noted,  rehabilitates  voluntary 
and  involuntary  manslaughter,  being  the  same  divisions 
originally  recognized  by  the  Common  Law. 

§  304.  Punishment  for  Murder  and  Manslaughter. — 
Section  275  of  the  new  Code,  which  displaces  old  Sections 
5339  and  5343,  is  as  follows: 

"Sec.  275.  Every  person  guilty  of  murder  in  the  first  degree  shall 
suffer  death.  Every  person  guilty  of  murder  in  the  second  degree 
shall  be  imprisoned  not  less  than  ten  years  and  may  be  imprisoned 
for  life.  Every  person  guilty  of  voluntary  manslaughter  shall  be 
imprisoned  not  more  than  ten  years.  Every  person  guilty  of  in- 
voluntary manslaughter  shall  be  imprisoned  not  more  than  three 
years,  or  fined  not  exceeding  one  thousand  dollars,  or  both." 

§  305.  Assault  with  Intent  to  Commit  Murder,  Rape, 
Robbery,  Etc. — A  part  of  the  provisions  of  old  Statute 
5346  are  included  in  new  Section  276,  which  is  very 
broad,  and  which  is  in  the  following  words: 

"Sec.  276.  Whoever  shall  assault  another  with  intent  to  commit 
murder,  or  rape,  shall  be  imprisoned  not  more  than  twenty  years. 
Whoever,  shall  assault  another  with  intent  to  commit  any  felony, 
except  murer,  or  rape,  shall  be  fined  not  more  than  three  thousand 
dollars,  or  imprisoned  not  more  than  ten  years,  or  both.  Whoever, 
with  intent  to  do  bodily  harm,  and  without  just  cause  or  excuse,  shall 
assault  another  with  a  dangerous  weapon,  instrument,  or  other  thing, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  five  years,  or  both.  Whoever  shall  unlawfully  strike,  beat, 
or  wound  another,  shall  be  fined  not  more  than  five  hundred  dollars, 
or  imprisoned  not  more  than  six  months,  or  both.  Whoever  shall  un- 
lawfully assault  another,  shall  be  fined  not  more  than  three  hundred 
dollars,  or  imprisoned  not  more  than  three  months,  or  both." 

In  United  States  vs.  Barnaby,  51  Federal,  20,  the  de- 
fendant was  charged  in  the  indictment  with  an  assault 
with  intent  to  commit  murder,  and  the  Court  held  that 
the  indictment  was  insufficient,  where  it  merely  charged 
that  the  defendant  made  an  assault  with  a  knife  upon  a 
person  named,  with  intent  him  to  kill,  wilfully  and  fe- 
loniously, and  of  his  malice  aforethought,  without  dis- 


Offenses  Within  Jurisdiction  of  United  States.  537 

closing  the  character  of  the  knife,  or  averring  that  lie 
struck  him  with  it,  or  inflicted  any  wound  having  a  ten- 
deny  to  produce  death. 

§  306.  Attempt  to  Commit  Murder  or  Manslaughter. 
— Section  5342  of  the  old  statutes  is  replaced  by  Section 
277  of  the  new  Code,  in  the  following  words: 

"Sec.  277.  Whoever  shall  attempt  to  commit  murder,  or  manslaugh- 
ter, except  as  provided  in  the  preceding  section,  shall  be  finded  not 
more  than  one  thousand  dollars  and  imprisoned  not  more  than  three 
years." 

§  307.  Rape. — Section  5343  of  the  old  statutes  be- 
comes Section  278  of  the  new  Code,  in  the  following 
words : 

"Sec.  278.  Whoever  shall  commit  the  crime  of  rape  shall  suffer 
death." 

Under  the  Common  Law,  rape  is  the  having  of  carnal 
knowledge,  by  a  man  of  a  woman,  forcibly  and  against 
her  will.    A  corrected  definition,  given  by  Mr.  Bishop,  is, 


"Rape  is  the  having  of  unlawful  carnal  knowledge,  by  a  man  of  a 
woman,  forcibly,  where  she  does  not  consent." 

The  difference  between  the  use  of  the  words,  "where  she 
does  not  consent"  and  the  words  "against  her  will,"  is 
treated  by  Lord  Campbell  in  the  following  manner: 

"The  question  is,  What  is  the  real  definition  of  rape — whether  it 
is  the  ravishing  of  a  woman  against  her  will,  or  withohut  her  consent? 
If  the  former  is  the  correct  definition,  the  crime  is  not,  in  this  case, 
proved;  if  the  latter,  it  is  proved.  Camplin's  case  seems  to  me  really 
to  settle  what  the  proper  definition  is,  and  the  decision  in  that  case 
rests  upon  the  authority  of  an  Act  of  Parliament.  The  statute  of 
Westminster  2,  C.  34,  defines  the  crime  to  be  where  a  man  do  ravish 
a  woman,  married,  maid,  or  other,  where  she  did  not  consent,  neither 
before  nor  after.  We  are  bound  by  that  definition,  and  it  was  adopted 
in  Camplin's  case,  acted  upon  in  Ryan's  case,  and  subsequently  in  a 
case  before  my  Brother  Willes.  It  would  be  monstrous  to  say  that  if 
a  drunken  woman,  returning  from  market,  lay  down  and  fall  asleep 
by  the  readside,  and  a  man,  by  force,  had  connection  with  her  whilst 
she  was  in  a  state  of  insensibility,  and  incapable  of  giving  consent, 
he  woul^  uot  be  g-uilty  of  rape." 


538  Federal,  Criminal  Law  Procedure. 

The  concluding  illustration  of  the  great  Chief  Justice 
was  held  not  to  be  rape,  in  P.  vs.  Quin,  50  Barb.,  128, 
but  was  held  to  be  rape  in  C.  vs.  Burk,  105  Mass.,  376. 

§  308.  Having  Carnal  Knowledge  of  Female  Under 
Sixteen. — Section  279  of  the  new  Code  reads  as  follows: 

"Sec.  279.  Whoever  shall  carnally  and  unlawfully  know  any  female 
under  the  age  of  sixteen  years,  or  shall  be  accessory  to  such  carnal 
and  unlawful  knowledge  before  the  fact,  shall,  for  a  first  offense, 
be  imprisoned  not  more  than  fifteen  years,  and  for  a  subsequent  offense 
be  imprisoned  not  more  than  thirty  years." 

Sec.  308  a.     Statement  by  Assaulted  Female. 

It  was  held  in  Callahan  vs.  U.  S.,  240  F.  683,  that  a 
statement  made  by  the  girl  to  an  acquaintance  after  the 
fact  was  not  admissible. 

§  309.  Seduction  of  Female  Passenger  on  Vessel. — 
The  substance  of  Section  5349  becomes  new  Section  280, 
which  reads  as  follows: 

"Sec.  280.  Every  master,  officer,  seaman,  or  other  person  employed 
on  board  of  any  American  vessel  who,  during  the  voyage,  under  prom- 
ise of  marriage,  or  by  threats,  or  the  exercise  of  authority,  or  solicita- 
tion, or  the  making  of  gifts  or  presents,  seduces  and  has  illicit  con- 
nection with  any  female  passenger,  shall  be  fined  not  more  than  one 
thousand  dollars,  or  imprisoned  not  more  than  one  year,  or  both; 
but  subsequent  intermarriage  of  the  parties  may  be  pleaded  in  bar  of 
conviction." 

§  310.  Payment  of  Fine  to  Female  Seduced;  Evidence 
Required;  Limitation  on  Indictment. — Old  Sections  5350 
and  5351  become  new  Section  281  of  the  new  Code,  as 
follows: 

"Sec.  281.  When  a  person  is  convicted  of  a  violation  of  the  section 
last  preceding,  the  court  may,  in  its  discretion,  direct  that  the  amount 
of  the  fine,  when  paid,  be  paid  for  the  use  of  the  female  seduced,  or 
her  child,  if  she  have  any;  but  no  conviction  shall  be  had  on  the 
testimony  of  the  female  seduced  without  other  evidence,  nor  unless  the 
indictment  is  found  within  one  year  after  the  arrival  of  the  vessel  on 
which  the  offense  was  committed  at  the  port  of  its  destination." 

§  311.  Punishment  for  Loss  of  Life  by  Misconduct  of 
Officers,  Owners,  Charterers,  Etc.,  of  Vessels. — Old  Sec- 


Offenses  Within  Jurisdiction  of  United  States.  539 

tion  5344  is  greatly  broadened  by  new  Section  282,  which 
is  as  follows: 

"Sec.  282.  Every  captain,  engineer,  pilot,  or  other  person  employed 
on  any  steamboat  or  vessel,  by  whose  misconduct,  negligence,  or  in- 
attention to  his  duties  on  such  vessel  the  life  of  any  person  is  de- 
stroyed, and  every  owner,  charterer,  inspector,  or  other  public  officer, 
through  whose  fraud,  neglect,  connivance,  misconduct,  or  violation 
of  law  the  life  of  any  person  is  destroyed,  shall  be  fined  not  more 
than  ten  thousand  dollars,  or  imprisoned  not  more  than  cen  years, 
or  both.  Provided,  That  when  the  owner  or  charterer  of  any  steam- 
boat or  vessel  shall  be  a  corporation,  any  executive  officer  of  such 
corporation,  for  the  time  being  actually  charged  with  the  control 
and  management  of  the  operation,  equipment,  or  navigation  of  such 
steamboat  or  vessel,  who  has  knowingly  and  wilfully  caused  or  allowed 
such  fraud,  neglect,  connivance,  misconduct,  or  violation  of  law,  by 
which  the  life  of  any  person  is  destroyed,  shall  be  fined  not  more 
than  ten  thousand  dollars,  or  imprisoned  not  more  than  ten  years,  or 
both." 

The  term  "vessel"  was  construed  to  include  every  de- 
scription of  water-craft,  or  other  artificial  contrivance 
used  or  capable  of  being  used  as  a  means  of  transporta- 
tion on  water,  in  the  case  of  United  States  vs.  Holmes, 
104  Federal,  884.  In  that  same  case,  it  was  also  held 
that  the  offense  named  in  the  statute  was  complete  when 
the  misconduct,  negligence,  or  inattention  in  the  naviga- 
tion of  a  vessel  by  one  of  the  persons  named  resulted  in 
the  loss  of  human  life,  and  that  the  indictment  there- 
under need  not  charge  a  criminal  intent. 

In  United  States  vs.  Van  Schaick,  134  Federal,  592, 
which  was  affirmed  in  Van  Schaick  vs.  United  States,  159 
Federal,  847,  it  was  held  that  even  though  the  statute 
could  not  reach  a  corporation  owner  of  a  vessel,  yet  such 
fact  did  not  affect  the  right  of  the  Government  to  prose- 
cute individuals  under  said  section,  who  aid  and  abet  the 
corporation  in  the  commission  of  the  crime;  and  the 
owner  of  a  steamship  who  fails  to  comply  with  the  stat- 
ute requiring  it  to  be  equipped  with  life  preservers  and 
proper  fire  appliances,  either  by  supplying  none,  or  by 
supplying  those  that  are  unsuitable,  inefficient,  and  use- 
less, is  guilty  of  a  violation  of  this  section,  provided  such 
violation  results  in  the  death  of  a  person. 


540  Federal  Criminal  Law  Procedure. 

§  312.  Maiming. — Old  Statutes  5348  becomes  the  sub- 
stances of  Section  283  of  the  new  Code,  as  follows: 

"Sec.  283.  Whoever,  with  intent  to  maim  or  disfigure,  shall  cut, 
bite,  or  slit,  the  nose,  ear,  or  lip,  or  cut  out  or  disable  the  tongue, 
or  put  out  or  destroy  an  eye,  or  cut  off  or  disable  a  limb  or  any 
member  of  another  person;  or  whoever,  with  like  intent,  shall  throw 
or  pour  upon  another  person,  any  scalding  hot  water,  vitriol,  or  other 
corrosive  acid,  or  caustic  substance  whatever,  shall  be  fined  not  more 
than  one  thousand  dollars,  or  imprisoned  not  more  than  seven  years, 
or  both." 

§  313.  Robbery. — Section  5370  of  the  old  statutes  be- 
comes Section  284  in  the  new  Code,  in  the  following 
words: 

"Sec.  284.  Whoever,  by  force  and  violence,  or  by  putting  in  fear, 
shall  feloniously  take  from  the  person  or  presence  of  another  anything 
of  value,  shall  be  imprisoned  not  more  than  fifteen  years." 

§  314.  Arson  of  Dwelling  House. — Section  285  of  the 
new  Code  adds  the  new  element  of  destruction  by  ex- 
plosives, and  reduces  the  maximum  penalty,  and  is  sub- 
stituted for  Section  5385  of  the  old  statutes,  and  is  in 
the  following  words: 

"Sec.  285.  Whoever  shall  wilfully  and  maliciously  set  fire  to, 
burn,  or  attempt  to  burn,  or  by  means  of  a  dangerous  explosive  destroy 
or  attempt  to  destroy,  any  dwelling  house,  or  any  store,  barn,  stable, 
or  other  building,  parcel  of  a  dwellng  house,  shall  be  imprisoned  not 
more  than  twenty  years." 

§  315.  Arson  of  Arsenal,  Etc.;  Other  Buildings,  Etc. 
— Section  286  of  the  new  Code  includes  many  things  not 
enumerated  in  old  Statute  5386,  and  is  in  the  following- 
words  : 

"Sec.  286.  Whoever  shall  maliciously  set  fire  to,  burn,  or  attempt 
to  burn,  or  by  any  means  destroy  or  injure,  or  attempt  to  destroy  or 
injure,  any  arsenal,  armory,  magazine,  rope-walk,  ship-house,  ware- 
house, blockhouse,  or  barrack,  or  any  store-house,  barn,  or  stable,  not 
parcel  of  a  dwelling  house,  or  any  other  building  not  mentioned  in 
the  section  last  preceding,  or  any  vessel  built,  building,  or  undergoing 
repair,  or  any  light-house,  or  beacon,  or  any  machinery,  timber,  cables, 
rigging,  or  other  materials  or  appliances  for  building,  repairing, 
or  fitting  out  vessels,  or  any  pile  of  wood,  boards,  or  other  lumber, 
or  any  military,  naval,  or  victualing  stores,  arms,  or  other  munitions 
of  war,  shall  be  fined  not  more  than  five  thousand  dollars  and  im- 
prisoned not  more  than  twenty  years." 


Offenses  Within  Jurisdiction  of  United  States.  541 

The  technical  quashing  of  an  indictment  in  United 
States  vs.  Cardish,  14  Federal,  640,  growing  out  of  the 
necessity  of  the  Common  Law  definition  of  the  word  "ar- 
son" controlling  in  the  Federal  prosecution,  would  not 
be  possible  under  this  new  section,  for  the  reason  that  the 
destruction  by  fire,  as  enumerated  in  the  new  section,  is 
not  limited  to  the  technical  meaning  of  the  word  "arson" 
at  Common  Law. 

§  316.  Larceny. — Section  287  of  the  new  Code,  which 
takes  the  place  of  old  Section  5356,  is  patterned  after  the 
legislation  of  the  various  States  which  recognize  two  dif- 
ferent punishments,  to  be  graded  by  the  value  of  the 
articles  stolen. 

"Sec.  287.  Whoever  shall  take  and  carry  away,  with  intent  to 
steal  or  purloin,  any  personal  property  of  another,  shall  be  punished 
as  follows:  If  the  property  taken  is  of  a  value  exceeding  fifty  dol- 
lars, or  is  taken  from  the  person  of  another,  by  a  fine  of  not  more 
than  ten  thousand  dollars,  or  imprisonment  for  not  more  than  ten 
years,  or  both;  in  all  other  cases,  by  a  fine  of  not  more  than  one 
thousand  dollars,  or  by  imprisonment  not  more  than  one  year,  or 
both.  If  the  property  stolen  consists  of  any  evidence  of  debt,  or  other 
written  instrument,  the  amount  of  money  due  thereon,  or  secured 
to  be  paid  thereby,  and  remaining  unsatisfied,  or  which  in  any  con- 
tingency might  be  collected  thereon,  or  the  value  of  the  property  the 
title  to  which  is  shown  thereby,  or  the  sum  which  might  be  recovered 
in  the  absence  thereof,  shall  be  deemed  to  be  the  value  of  the  prop- 
erty stolen." 

Sec.  316  a.     Larceny — Decisions. 

The  indictment  must  charge  the  actual  owner  of  the 
property,  Thompson  vs.  U.  S.,  256  F.  616. 

For  a  definition  of  larceny,  etc.,  see  Nichamin  vs.  U. 
S.,  263  F.  880. 

§  317.  Receiving,  Etc.,  Stolen  Goods. — Section  5357 
of  the  old  Code  is  broadened  by  new  Section  288,  so  as  to 
include  the  receiving  of  money  which  has  been  embezzled, 
and  by  authorizing  the  trial  of  the  receiver  of  such  money 
before  the  trial  of  the  principal  offender;  the  section 
reading  as  follows: 

"Sec.  288.  Whoever  shall  buy,  receive,  or  conceal,  any  money, 
goods,  bank  notes,  or  other  thing  which  may  be  the  subject  of  larceny, 
which  has  been  feloniously  taken,  stolen,  or  embezzled,  from  any  other 


542  Federal  Criminal  Law  Procedure. 

person,  knowing  the  same  to  have  been  so  taken,  stolen,  or  embezzled, 
shall  be  fined  not  more  than  one  thousand  dollars  and  imprisoned 
not  more  than  three  years;  and  such  person  may  be  tried  before  or 
after  the  conviction  of  the  principal  offender." 

In  Bise  vs.  United  States,  144  Federal,  374,  the  Court 
held  that  in  a  prosecution  under  old  section,  it  was  not 
essential  to  allege  in  the  indictment  that  the  property  was 
received  without  the  consent  of  the  owner,  or  with  intent 
to  deprive  him  of  its  use  and  benefit;  the  criminal  intent 
and  evil  purpose  of  the  receiver  being  sufficiently  alleged 
where  his  act  is  characterized  as  unlawful  and  felonious. 

§  318.  Laws  of  State  Adopted  for  Punishing  Wrong- 
ful Acts,  Etc. — Ee-written,  broadened,  and  amplified,  old 
Section  5391  becomes  new  Section  289,  in  the  following 
words : 

"Sec.  289.  Whoever,  within  the  territorial  limits  of  any  State, 
organized  Territory,  or  District,  but  within  or  upon  any  of  the  places 
now  existing,  or  hereafter  reserved  or  acquired,  described  in  section 
two  hundred  and  seventy-two  of  this  act,  shall  do  or  omit  the  doing 
of  any  act  or  thing  which  is  not  made  penal  by  any  law  of  Congress, 
but  which  if  committed  or  omitted  within  the  jurisdiction  of  the  State, 
Territory,  or  District  in  which  such  place  is  situated,  by  the  laws 
thereof  now  in  force  would  be  penal,  shall  be  deemed  guilty  of  a  like 
offense  and  be  subject  to  a  like  punishment;  and  every  such  State, 
Territorial,  or  District  law  shall,  for  the  purpose  of  this  section, 
continue  in  force,  notwithstanding  any  subsequent  repeal  or  amend- 
ment thereof  by  any  such  State,  Territory,  or  District." 

This  is  one  of  the  most  useful  Federal  sections.  Under 
it,  petty  misdemeanors  and  other  offenses  not  enumerated 
in  the  Federal  Code,  U.  S.  vs.  Barnaby,  51  Federal,  page 
20,  the  punishment  of  which,  however,  is  essential,  are 
made  in  this  comprehensive  manner  federal  offenses.  In 
Franklin  vs.  United  States,  decided  by  the  Supreme  Court 
on  March  14,  1910,  that  Court-reaffirmed  the  case  of 
United  States  vs.  Paul,  6  Peters,  141,  over  the  objection 
made  to  the  constitutionality  of  the  section  under  dis- 
cussion, resting  such  objection  upon  the  contention  that 
the  statute  would  authorize  State  governments  to  change 
penalties  for  Federal  offenses,  and  said: 

"In  United  States  vs.  Paul,  6  Peters,  141,  coming  here  on  certifi- 
cate of  division,  it  was  held  by  this  Court,  speaking  by  Chief  Justice 


Offenses  Within  Jurisdiction  of  United  States.  543 

Marshall,  that  the  effect  of  this  Section  (5391)  was  limited  to  the 
laws  of  the  several  States  in  force  at  the  time  of  its  enactment,  and 
it  followed  by  this  Act,  Congress  adopted  for  the  government  of  the 
designated  places  under  the  exclusive  jurisdiction  and  control  of  the 
United  States,  the  criminal  laws  then  existing  in  the  several  States, 
within  which  such  places  were  not  displaced  by  specific  laws  enacted 
by  Congress.  Section  2  of  the  Act  of  July  seventh,  1898,  was  to  the 
same  effect,  and,  moreover,  by  express  language,  Congress  adopted 
such  punishment  as  'the  laws  of  the  State  in  which  such  place  is 
situated  now  provide  for  the  like  offense.'  There  is  plainly  no  dele- 
gation to  the  State  of  authority  in  any  way  to  change  the  criminal 
laws  applicable  to  the  places  over  which  the  United  States  has  juris- 
diction." 

In  in  re  Kelly,  71  Federal,  545,  the  Court  held  that  a 
cession  to  the  general  Government  of  certain  lands  tor  a 
soldiers'  home,  in  the  Act  giving  the  consent  of  the  State 
to  purchase  such  land,  does  not  confer  exclusive  jurisdic- 
tion, and  that  upon  such  lands  so  ceded  for  the  purpose 
of  a  home  for  disabled  soldiers,  the  criminal  laws  of  the 
United  States,  which  apply  only  to  places  within  their 
exclusive  jurisdiction,  are  not  operative.  See  also  Unit- 
ed States  vs.  Barnaby,  51  Federal,  20. 

§  318a.  Libel  not  Federal  Offense. — The  Supreme 
Court  of  the  United  States  in  U.  S.  vs.  Press  Publishing 
Company,  219  U.  S.,  1,  held  that  a  prosecution  for  libel 
under  the  foregoing  section  could  not  be  had  in  the  Unit- 
ed States  Courts  when  the  laws  of  the  state  of  New  York 
under  which  the  libel  was  circulated  contained  a  unity 
act  providing  that  it  was  a  criminal  act  to  publish  and 
circulate  a  libel  and  since  the  laws  of  the  state  of  New 
York  afforded  adequate  means  for  punishing  such  cir- 
culation on  a  United  States  reservation  in  said  State, 
successful  prosecution  could  not  be  had  in  the  Federal 
Courts  for  such  circulation  on  such  reservation  and  as  a 
distinct  and  separate  offense  from  the  publication.  See 
also  Franklin  vs.  U.  S.,  216  U.  S.,  559. 


CHAPTER  XV. 

PIRACY  AND  OTHER  OFFENSES  UPON  THE  HIGH  SEAS. 

§  319.  Generally. 

320.  Piracy  in  the  Code:     5368—290. 

321.  Maltreatment  of  Crew  by  Officers  of  Vessel:     5347 — 291. 

322.  Extradition  for  this  Offense:    New  Code,  321. 
322a.  Extradition. 

323.  Inciting  Revolt  of  Mutiny  on  Ship-Board:     5359 — 292. 
323a.  Elements  of  Mutiny. 

324.  Revolt  and  Mutiny  on  Ship-Board:    5360 — 293. 

325.  Seaman  Laying  Violent  Hands  on  His  Commander:    5369 — 294. 

326.  Abandonment  of  Mariners  in  Foreign  Ports:     5363 — 295. 

327.  Conspiracy  to  Cast  Away  Vessel:    5364 — 296. 

328.  Plundering  Vessel,  Etc.,  in  Distress:    5358—297. 

329.  Attacking  Vessel  With  Intent  to  Plunder:     5361—298. 

330.  Breaking  and  Entering  Vessel,  Etc.:     5362 — 299. 

331.  Owner  Destroying  Vessel  at  Sea:    5365 — 300. 

332.  Other  Persons  Destroying  or  Attempting  to  Destroy  Vessel  at 

Sea:     5366and  5367—301. 

333.  Robbery  on  Shore  by  Crew  of  Piratical  Vessel:    5371 — 302. 

334.  Arming  Vessel   to  Cruise  Against  the  Citizens   of  the   United 

States:     5284—303. 

335.  Piracy  Under  Color  of  a  Foreign  Commission:    5373 — 304. 

336.  Piracy  by  Subjects  or  Citizens  of  a  Foreign  State:     5374 — 305. 

337.  Running  Away  With  or  Yielding  Up  Vessel  of  Cargo:     5383 — 

306. 

338.  Confederating,  Etc.,  with   Pirates:     5384 — 307. 

339.  Sale  of  Arms   and   Intoxicants  Forbidden   in   Pacific   Islands: 

32  St.  L.,  33—308. 

340.  Offenses  Under  Preceding  Section  Deemed  on  High  Seas:    Act 

February  14,  1902—309. 
340a.  High  Seas — Decisions. 

341.  "Vessels  of  the  United  States"  Defined:    New  Code,  310. 

§  319.  Piracy  is  an  offense  against  the  international 
law,  and  as  snch,  the  authorities  define  it  to  be  any  for- 
cible depredation  on  the  high  seas,  perpetrated  in  gen- 
eral hostility  to  mankind,  for  the  gain  or  other  private 
ends  of  the  doers.  First  Kent's  Commentary,  page  183, 
defines  it  as  follows: 

"Piracy  is  robbery  or  a  forcible  depredation  on  the  high  seas,  with- 
out lawful  authority,  and  done  animo  furancli  and  in  the  spirit  and 
intention  of  universal   hostility.     It  is  the  same  offense  at   sea  with 

(544) 


Piracy  and  Other  Offenses  upon  the  High  Seas.  545 

robbery  on  land;  and  all  tbe  writers  on  the  law  of  nations  and  on 
the  maritime  law  of  Europe  agree  in  this  definition  of  piracy." 

Lord  Coke  said  that  a  pirate  is  a  rover  and  a  robber  upon 
the  sea. 

The  statutes  of  the  United  States  make  piracy  a  Fed- 
eral offense.  The  original  punishment  was  by  death.  The 
Act  of  January  fifteenth,  1897,  29  Statute  at  Large,  487, 
substituted  life  imprisonment. 

§  320.  Piracy.— Section  290  of  the  new  Code  takes 
the  place  of  Section  5368  of  the  old  Code,  which  had  been 
amended  as  before  mentioned,  and  section  290  reads  as 
follows: 

"Sec.  290.  Whoever,  on  the  high  seas,  commits  the  crime  of  piracy 
as  defined  by  the  law  of  nations,  and  is  afterwards  brought  into  or 
found  in  the  United  States,  shall  be  imprisoned  for  Life." 

Some  cases  of  the  Common  Law  doctrine,  applied 
either  in  the  construction  of  the  statutes  or  otherwise, 
are  the  "Marinna  Flora,"  11  Wheat.,  1;  U.  S.  vs.  Gilbert, 
2  Sumn.,  19;  U.  S.  vs.  Tully,  1  Gallis,  247;  the  "Ante- 
lope," 10  Wheat.,  66;  U.  S.  vs.  Jones,  3  Wash.,  C.  C,  209; 
United  States  vs.  Pirates,  5  Wheat.,  184;  U.  S.  vs.  Pal- 
mer, 3  Wheat.,  610;  U.  S.  vs.  Smith,  5  Wheat.,  153;  U. 
S.  vs.  Klintock,  5  Wheat.,  144. 

In  the  case  of  Ambrose  Light,  25  Federal,  408,  Judge 
Brown  said: 

"Accordingly,  the  definitions  of  piracy,  aside  from  statutory  piracy, 
fall  naturally  into  two  classes,  according  as  the  offense  is  viewed 
more  especially  as  it  affects  the  rights  of  nations,  or  is  amenable  to 
criminal  punishment  under  the  municipal  law.  The  Common  Law 
jurists  and  our  standard  authorities  on  Criminal  Law,  define  piracy 
as  robbery  on  the  high  seas;  or  such  acts  of  violence  or  felonious 
taking  on  the  high  seas  as  upon  land  would  constitute  the  crime  of 
robbery The  majority  of  authorities  on  international  law,  how- 
ever, define  it  substantially  as  Wheaton  defines  it,  namely:  as,  'the 
offenses  of  depredating  on  the  high  seas  without  being  authorized 
by  any  sovereign  State,  or  with  commissions  from  different  sover- 
eigns at  war  with  each  other." 

The  reading  of  our  statute  sends  us  for  a  definition  of 
the  offense  to  this  last  authority,  and  it  may  be  accepted 
as  the  correct  definition. 


546  Federal  Criminal  Law  Procedure. 

§  321.  Maltreatment  of  Crew  by  Officers  of  Vessel. — 
Old  Section  5347,  by  eliminating  the  word  "American" 
before  the  word  '"vessel,"  and  adding  the  words  "of 
the  United  States"  after  the  word  "vessel,"  becomes 
new  Section  291,  as  follows: 

"Sec.  291.  Whoever,  being  the  master  or  officer  of  a  vessel  of  the 
United  States,  on  the  high  seas,  or  on  any  other  waters  within  the 
admiralty  and  maritime  jurisdiction  of  the  United  States,  beats, 
wounds,  or  without  justifiable  cause,  imprisons  any  of  the  crew  of 
such  vessel,  or  withholds  from  them  suitable  food  and  nourishment, 
or  inflicts  upon  them  any  cruel  and  unusual  punishment,  shall  be 
fined  not  more  than  one  thousand  dollars,  or  imprisoned  not  more 
than  five  years,  or  both.  Nothing  herein  contained  shall  be  construed 
to  repeal  or  modify  section  forty-six  hundred  and  eleven  of  the  Re- 
vised  Statutes." 

Originally,  this  Act  included  the  words  "malice, 
hatred,  or  revenge";  and  while  these  words  were  in  the 
statute,  many  decisions  were  rendered  upon  a  state  of 
facts  showing,  or  failing  to  show,  such  condition  of 
mind,  but  which  decisions  would  not  be  at  all  helpful 
under  the  statute  in  its  present  shape. 

Under  the  authority  of  the  United  States  vs.  Trice,  30 
Federal,  490,  anyone  who,  by  authority,  exercises  the 
function  of  control  over  the  actions  of  the  crew,  or  any 
part  of  it,  by  giving  direction  to  their  work,  is  an  officer 
within  the  meaning  of  the  Eevised  Statutes  of  the  Unit- 
ed States,  and  is  liable  to  the  penalty,  if  he  beat  or 
wound  one  of  the  crew.  Thus,  upon  a  state  of  facts 
which  showed  that  one  of  the  roust-abouts  belonging  to 
the  crew  of  a  boat  was  set  over  the  rest  as  captain  of 
the  watch,  which  power  to  direct  their  work  and  demand 
obedience  to  his  orders,  and  while  so  acting,  beat  and 
wounded  one  of  the  crew  so  under  his  command,  he  was 
an  officer  within  the  meaning  of  the  statute,  and  amena- 
ble to  its  penalty. 

Since  the  abolition  of  corporal  punishment  by  the  old 
Section  4611  in  the  1878  Statutes,  a  punishment  by  flog- 
ging is  without  "justifiable  cause."  United  States  vs. 
Cutler,  1  Curt.,  501,  25  Federal  Case  No.  14910.  In  line 
with  the  Trice  case,  cited  supra,  is  United  States  vs. 
Taylor,  2  Sumn.,  584,  28  Federal  Case  No.  16442.  It  is 
needless  to  sav  in  this  connection  that  this  statute  pro- 


Piracy  and  Other  Offenses  upon  the  High  Seas.  547 

tects  the  crew  of  a  United  States  vessel,  it  does  not  mat- 
ter upon  what  waters  she  be  sailing,  and  where  the  of- 
fense denounced  by  the  statute  is  committed  on  hoard 
such  a  vessel,  it  is  an  offense  against  the  United  States, 
though  the  vessel  be  in  a  harbor  or  river  or  a  foreign 
country.  United  States  vs.  Bennett,  3  Hughes,  466,  24 
Federal  Cases,  14574;  Roberts  vs.  Skoelfield,  20  Federal 
Cases  No.  11917.  Under  the  authority  of  United  States 
vs.  Reed,  86  Federal,  308,  the  captain  of  a  vessel  is 
bound  to  exercise  the  same  care  to  discover  that  his  ves- 
sel is  properly  provisioned  when  he  undertakes  a  new 
voyage,  after  having  had  difficulty  or  trouble  at  sea, 
that  he  is  bound  to  observe  in  the  original  provisioning 
of  his  vessel  at  the  outset  of  the  voyage.  Sections  4568 
and  4612  of  the  old  statutes  provide  what  constitutes 
short  allowance  of  food,  etc.,  as  meant  by  the  statute 
under  discussion.  This  section  comprises  four  different 
offenses:  beating  or  wounding;  imprisoning;  deprivation 
of  suitable  food  and  nourishment;  the  infliction  of  any 
cruel  and  unusual  punishment. 

§  322.  Extradition  for  This  Offense. — It  was  decided 
by  the  Supreme  Court,  in  United  States  vs.  Ranschur, 
that  one  who  had  committed  an  offense  against  this 
statute,  and  who  was  apprehended  in  a  foreign  country 
and  extradited  upon  the  charge  of  murder,  could  not  be 
tried  in  this  country  under  an  indictment  found  under 
this  section,  even  though  the  identical  acts  relied  upon 
to  prove  the  charge  of  the  indictment  were  the  same  acts 
as  those  charged  to  have  been  relied  upon  for  the  charge 
of  murder.  The  Treaty,  the  Acts  of  Congress,  and  the 
proceedings  by  which  he  was  extradited,  clothe  him 
with  the  right  to  exemption  from  trial  for  any  other  of- 
fense until  he  has  had  opportunity  to  return  to  the  coun- 
try from  which  he  was  taken,  for  the  purpose  of  trial 
for  the  offense  specified  in  the  demand  for  his  surrender. 

§  322a.  Extradition. — For  extradition  generally,  see 
Section  42k;  also  Drew  vs.  Thaw,  U.  S.  Supreme  Court, 
235  U.  S.  432;  McNamara  vs.  Henkel,  U.  S.  Supreme 
Court,  226  U.  S.  520;  Gluckman  vs.  Henkel,  221  U.  S.; 
508;  ex  parte  Charlton,  185  Federal,  880;  ex  parte  Gra- 
ham, 216  Federal,  813;  ex  parte  Zentner,  188  Federal, 


548  Federal  Criminal  Law  Procedure. 

344  ex  parte  Urzna,  188  Federal,  541 ;  Sheriff  vs.  Daily, 
221  U.  S.,  280. 

§  322b.  Extradition,  Continued. — See  section  5278 
R.  S.  U.  S.  See  also  Innes  vs.  Tobin,  U.  S.  Sup.  Ct.  Feb- 
ruary 1916. 

§  323.  Inciting  Revolt  or  Mutiny  on  Ship  Board. — 
Section  5359  of  the  old  statutes  becomes  Section  292  of 
the  new  Code,  without  substantial  change,  except  that 
the  words  "of  the  United  States"  have  been  added  after 
the  word  "vessel";  the  section  now  reading  as  follows: 

"Sec.  292.  Whoever,  being  of  the  crew  of  a  vessel  of  the  United 
States,  on  the  high  seas,  or  on  any  other  waters  within  the  admiralty 
and  maritime  jurisdiction  of  the  United  States,  endeavors  to  make  a 
revolt  or  mutiny  on  board  such  vessel,  or  combines,  conspires,  or 
confederates  with  any  other  person  on  board  to  make  such  revolt 
or  mutiny,  or  solicts,  incites,  or  stirs  up  any  other  of  the  crew  to 
disobey  or  resist  the  lawful  orders  of  the  master  or  other  officer  of 
such  vessel,  or  to  refuse  or  neglect  their  proper  duty  on  board  there- 
of, or  to  betray  their  proper  trust,  or  assembles  with  others  in  a 
tumultuous  and  mutinous  manner,  or  makes  a  riot  on  board  thereof, 
or  unlawfully  confines  the  master  or  other  commanding  officer  there- 
of, shall  be  fined  not  more  than  one  thousand  dollars,  or  imprisoned 
not  more  than  five  years,  or  both." 

The  jurisdictional  question  suggested  in  the  statute 
is  that  only  the  acts  therein  mentioned  become  acts 
punishable  in  United  States  Courts  when  the  vessel  is 
a  United  States  vessel;  and  when  that  is  the  case,  the 
acts  are  punishable  in  the  United  States,  whether  the 
vessel  be  on  the  high  seas,  in  foreign  port,  or  harbor,  or 
upon  waters  within  the  admiralty  and  maritime  judis- 
diction  of  this  government.  The  word  "crew"  in  the 
statute  must  necessarily  include  the  mate  and  all  other 
inferior  officers,  as  well  as  the  crew  proper.  In  fact, 
it  includes  the  entire  force  of  the  vessel,  with  the  ex- 
ception of  the  master.  This  was  the  holding  in  the 
United  States  vs.  Huff,  13  Federal,  page  630.  That  case 
also  makes  the  distinction  between  mere  passive  dis- 
obedience and  active  resistance.  In  other  words,  the 
statute  would  not  include  a  case  of  simple  passive  dis- 
obedience of  the  master's  orders  on  the  part  of  one  of 
the  crew,  not  participated  in  by  others.  So,  also,  that 
case  includes  within  the  meaning  of  the  statute  an  un- 
lawful confinement  of  the  master,  even  though  such  con- 


Piracy  and  Other  Offenses  upon  the  High  Seas.  549 

finement  was  not  physical,  but  merely  a  confinement  by 
intimidation,  or  threats  of  bodily  injury  from  the  free 
use  of  every  part  of  the  vessel  in  the  preformance  of  his 
functions  as  master. 

In  the  case  of  United  States  vs.  Crawford,  25  Federal 
Cases  No.  14890,  it  was  held  that  the  vessel  must  be 
provided  to  be  an  American  vessel,  but  that  such  proof 
can  be  made  by  parol.  So,  also,  it  was  ruled  in  United 
States  vs.  Seagrist,  27  Federal  Case  16245,  and  27  Fed- 
eral Case  No.  16037.  A  vessel  engaged  in  the  whaling 
business,  which  has  not  taken  out  an  American  license 
or  enrollment,  is  not  protected  by  this  statute,  and  an 
indictment  will  not  hold  under  this  section  against  her 
crew  for  revolt.  United  States  vs.  Eogers,  27  Federal 
Case  No.  16189.  See  also  United  States  vs.  Jenkins, 
26  Federal  Case  No.  15437a.  For  other  cases  illustrating 
the  statute,  see  United  States  vs.  Sharp,  27  Federal  Case 
16246;  United  States  vs.  Doughty,  25  Federal  Case 
14987;  United  States  vs.  Kelley,  11 ' Wheat.,  417;  United 
States  vs.  Smith,  27  Federal  Case  No.  16344;  United 
States  vs.  Forbes,  25  Federal  Case  No.  15129;  U.  S.  vs. 
Lynch,  26  Federal  Case  No.  15648;  United  States  vs. 
Thompson,  28  Federal  Case  No.  16492.  As  defense  to  an 
indictment  under  this  section,  the  Courts  have  permitted 
the  crew  to  show  that  the  vessel  was  unseaworthy,  and 
that,  therefore,  they  resisted  its  sailing,  United  States 
vs.  Ashton,  24  Federal  Case  No.  14470;  also,  where  they 
have  refused  to  perform  their  duty  on  account  of  a  pro- 
posed deviation  in  the  original  line  of  voyage,  United 
States  vs.  Matthews,  26  Federal  Case  No.  15742. 

§  323a.  Elements  of  Mutiny. — In  order  to  warrant  a 
conviction  under  either  Section  292  or  293  it  must  ap- 
pear that  the  offense  was  committed  on  the  high  seas, 
on  a  vessel  of  the  United  States,  that  defendants  were 
members  of  the  crew,  and  that  the  person  so  deprived 
of  command  was  the  master  of  the  vessel,  or  officer  in 
command  on  board  thereof,  and  while  so  in  command 
defendants  or  some  of  them  feloniously  confined  him 
and  deprived  him  of  the  free  and  lawful  exercise  of 
his  authority,  and  also  that  the  defendants  were  appre- 
hended when  first  brought  into  the  district  where  the 
prosecution  was  instituted.     U.  S.  vs.  Reid  et  al.  210 


550  Federal  Criminal  Law  Procedure. 

Federal,  486.  Insults,  profanity,  inconsiderate  treat- 
ment, and  occasional  violence  not  of  an  unusual  charac- 
ter will  not  warrant  mutiny.  U.  S.  vs.  Eeid,  210  Federal, 
486. 

§  324.  Revolt  and  Mutiny  on  Ship  Board. — By  add- 
ing the  words  "of  the  United  States"  after  the  word 
"vessel,"  old  Section  5360  becomes  new  Section  293  in 
the  following  words: 

"Sec.  293.  Whoever,  being  of  the  crew  of  a  vessel  of  the  United 
States,  on  the  high  seas,  or  on  any  other  waters  within  the  admiralty 
and  maritime  jurisdiction  of  the  United  States,  unlawfully  and  with 
force,  or  by  fraud,  or  intimidation,  usurps  the  command  of  such 
vessel  from  the  master  or  other  lawful  officer  in  command  thereof, 
or  deprives  him  of  authority  and  command  on  moard,  or  resists  or 
prevents  him  in  the  free  and  lawful  exercise  thereof,  or  transfers 
such  authority  and  command  to  another  not  lawfully  entitled  thereto, 
is  guilty  of  a  revolt  and  mutiny,  and  shall  be  fined  not  more  than  two 
thousand  dollars  and  imprisoned  not  more  than  ten  years." 

Under  the  authority  of  United  States  vs.  Haines,  26 
Federal  Case  No.  15275,  and  United  States  vs.  Forbes, 
25  Federal  Case  No.  15129,  as  cited  in  Volume  6  Federal 
Statutes,  page  929,  a  revolt  is  an  open  rebellion  or 
mutiny  of  the  crew  against  the  authority  of  the  Master 
in  the  command,  navigation,  or  control  of  the  ship.  If 
the  crew,  in  a  mutiny,  were  to  displace  him  from  the 
actual  command  of  the  ship,  and  appoint  another  in  his 
stead,  that  would  clearly  be  a  revolt.  It  would  be  an 
actual  usurpation  of  his  authority  on  board  of  the  ship 
and  an  ouster  of  him  from  the  possession  and  control 
of  it.  As  determined  in  United  States  vs.  Almeida,  24 
Federal  Case  No.  14433,  the  unlawful  acts  which  now 
fall  within  the  definition  of  a  maritime  revolt  are  dis- 
tributed by  the  language  of  the  Section  into  four  cate- 
gories or  classes:  first,  simple  resistance  to  the  exercise 
of  the  captain's  authority;  second,  the  deposition  of  the 
captain  from  his  command;  third,  the  transfer  of  the 
captain's  power  to  a  third  person;  and,  fourth,  the  usur- 
pation of  the  captain's  power  by  the  accused  party.  See 
also  United  States  vs.  Haines  and  United  States  vs. 
Forbes,  cited  supra.  Other  cases  are  United  States  vs. 
Borden,  24  Federal  Case,  1202;  United  States  vs.  Giv- 
ings,  25  Federal  Case,  1331;  United  States  vs.  Haskell, 


Piracy  and  Other  Offenses  upon  the  High  Seas.  551 

26  Federal  Case,  207;  United  States  vs.  Peterson,  227 
Federal  Case,  515. 

See  also  Sections  323  and  323a.  Also  U.  S.  vs.  Rcid 
et  al.,  210  Federal,  486 

§  325.  Seaman  Laying  Violent  Hands  on  His  Com- 
mander.— By  changing  the  penalty  in  old  Section  5369 
from  death  to  imprisonment  for  life,  that  section  be- 
comes Section  294  of  the  new  Code,  as  follows: 

"Sec.  294.  Whoever,  being  a  seaman,  lays  violent  hands  upon  his 
commander,  thereby  to  hinder  and  prevent  his  fighting  in  defense 
of  his  vessel  or  the  goods  intrusted  to  him,  is  a  pirate,  and  shall 
be  imprisoned  for  life." 

§  326.  Abandonment  of  Mariners  in  Foreign  Ports. 
— Section  5363  of  the  old  statutes,  taking  into  considera- 
tion Section  310  of  the  new  Code,  which  defines  what  the 
words  "vessel  of  the  United  States"  means,  is  practical- 
ly the  same  as  Section  295  of  the  new  Code,  in  the  follow- 
ing words : 

"Sec.  295.  Whoever,  being  master  or  commander  of  a  vessel  of  the 
United  States,  while  abroad,  maliciously  and  without  justifiable  cause 
forces  any  officer  or  mariner  of  such  vessel  on  shore,  in  order  to 
leave  behind  him  in  any  foreign  port  or  place,  or  refuses  to  bring 
home  again  all  such  officers  and  mariners  of  such  vessel  whom  he 
carried  out  with  him,  as  are  in  a  condition  to  return  and  willing  to 
return,  when  he  is  ready  to  proceed  on  his  homeward  voyage,  shall 
be  fined  not  more  than  five  hundred  dollars,  or  imprisoned  not  more 
than  six  months,  or  both." 

See  United  States  vs.  Ruggles,  5  Mass.,  192;  United 
States  vs.  Coffin,  1  Sumn.,  394;  United  States  vs.  Netch- 
er,  1  Storey,  307;  United  States  vs.  Riddle,  4  Wash.,  644; 
Nieto  vs.  Clark,  18  Federal  Case,  236. 

In  Chinese  Laborers  Case,  13  Federal  Reporter,  291, 
the  Court  held  that  the  immigration  laws  of  the  United 
States,  which  prohibited  the  importation  of  Chinese 
laborers,  did  not  apply  to  bringing  a  Chinese  laborer 
already  on  board  the  vessel  when  touching  at  a  foreign 
port  or  place.  In  other  words,  while  on  board  an  Ameri- 
can vessel,  a  Chinese  laborer  is  within  the  jurisdiction  of 
the  United  States,  and  does  not  lose,  by  his  employment, 
the  right  of  residence  here  previously  acquired  under 
the  treaty  with  China.    His  status  as  an  American  citi- 


552  Federal  Criminal  Law  Procedure. 

zen  is  not  changed  by  the  fact  of  his  employment  on  an 
American  vessel,  and  that  he  is  permitted  by  the  captain 
to  land  for  a  few  hours  in  a  foreign  port. 

§  327.  Conspiracy  to  Cast  Away  Vessel. — Old  Sec- 
tion 5364  becomes,  without  any  material  change,  Sec- 
tion 296  of  the  new  Code,  in  the  following  words: 

"Sec.  296.  Whoever,  on  the  high  seas,  or  within  the  United  States, 
wilfully  and  corruptly  conspires,  combines,  and  confederates  with 
any  other  person,  such  other  person  being  either  within  or  without 
the  United  States,  to  cast  away  or  otherwise  destroy  any  vessel,  with 
intent  to  injure  any  person  that  may  have  underwritten  or  may  there- 
after underwrite  any  policy  of  insurance  thereon  or  on  goods  on 
board  thereof,  or  with  intent  to  injure  any  person  that  has  lent  or 
advanced,  or  may  lend  or  advance,  any  money  on  such  vessel  on 
bottomry  or  respondentia;  or  whoever,  within  the  United  States, 
builds,  or  fits  out,  or  aids  in  building  or  fitting  out,  any  vessel  with 
intent  that  the  same  be  cast  away  or  destroyed,  with  the  intent  here- 
inbefore mentioned,  shall  be  fined  not  more  than  ten  thousand  dollars 
and   imprisoned  not  more  than  ten  years." 

The  constitutionality  of  this  section  has  been  deter- 
mined in  United  States  vs.  Cole,  5  McLean,  513;  25  Fed- 
eral Cases  No.  14832;  and  in  that  same  case  it  was  also 
determined  that  the  section  related  to  the  internal,  as 
well  as  the  foreign  commerce  of  the  United  States.  In 
that  same  case,  it  was  also  held  that  an  actual  injury  was 
not  necessary;  as,  for  instance,  any  combination  or  con- 
spiracy to  bring  about  the  destruction  of  the  vessel  or 
any  portion  of  its  cargo,  ripened  the  offense  of  the  stat- 
ute. 

In  United  States  vs.  Hand,  6  McLean,  274;  26  Federal 
Cases  No.  15296,  the  Court  speaks  of  the  specific  intent 
necessary  under  the  statute,  which  must  be  both  alleged 
and  proven. 

§  328.  Plundering  Vessel,  Etc.,  in  Distress. — By  in- 
creasing the  punishment  from  ten  years  to  life  imprison- 
ment, old  Section  5358  becomes  new  Section  297,  in  the 
following  words: 

"Sec.  297.  Whoever  plunders,  steals  or  destroys  any  money,  goods, 
merchandise,  or  other  effects,  from  or  belonging  to  any  vessel  in 
distress,  or  wrecked,  lost,  stranded,  or  cast  away,  upon  the  sea,  or 
upon  any  reef,  shoal,  bank,  or  rocks  of  the  sea,  or  in  any  other  place 
within  the  admiralty  and  maritime  jurisdiction  of  the  United  States, 


Piracy  and  Other  Offenses  upon  the  High  Seas.  553 

shall  be  fined  not  more  than  five  thousand  dollars  and  imprisoned 
not  more  than  ten  years;  and  whoever  wilfully  obstructs  the  escape 
of  any  person  endeavoring  to  save  his  life  from  such  vessel,  or  the 
wreck  thereof;  or  whoever  holds  out  or  shows  any  false  light,  or 
extinguishes  any  true  light,  with  intent  to  bring  any  vessel  sailing 
upon  the  sea  into  danger,  or  distress,  or  ship-wreck,  shall  be  imprisoned 
not  less  than  ten  years  and  may  be  imprisoned  for  life." 

Under  United  States  vs.  Coombs,  12  Peters,  72,  it  is 
entirely  immaterial  whether  the  goods  be  upon  the  ves- 
sel or  not,  or  whether  the  goods  be  above  high  water 
mark.  It  is  entirely  sufficient  if  it  be  property  belonging 
to  any  ship  or  vessel.  This  same  case  determined  the 
constitutionality  of  this  section,  and  held  that  it  was 
within  the  power  of  Congress,  under  the  commerce 
clause  of  the  Constitution. 

In  United  States  vs.  Stone,  8  Federal,  232,  Judge  Ham- 
mond overruled  a  motion  for  a  new  trial  which  was  re- 
quested by  certain  men  who  were  convicted  for  plunder- 
ing the  wreck  of  the  City  of  Vicksburg,  out  of  which 
fifty-one  indictments  were  found;  and  in  that  opinion, 
he  held  that  Section  5358  was  comprehensive,  and  of- 
forded  an  extraordinary  protection  to  property  within  the 
admiralty  and  maritime  jurisdiction  of  the  United 
States,  by  creating  and  punishing  a  substantive  and  dis- 
tinct offense  for  all  acts  of  spoliation  upon  the  property 
belonging  to  a  vessel  wrecked  or  in  distress;  that  it  was 
not  alone  the  crime  of  larceny  that  the  statute  punishes, 
but  any  act  of  depredation  whether  it  be  of  the  charac- 
ter that  would  be  piracy  if  committed  on  the  high  seas, 
robbery  or  other  forcible  taking,  theft,  trespass,  mali- 
cious mischief,  or  any  fraudulent  and  criminal  breach  of 
trust,  if  committed  on  land,  of  property  solely  under 
the  protection  of  Common  or  statutory  law  of  the  State; 
and  that  no  specific  intent  was  necessary  under  the  stat- 
ute to  constitute  the  offense.  In  other  words,  any  in- 
tent, except  that  of  restoring  the  goods  to  the  vessel 
of  the  owner,  was  the  unlawful  intent  comprehended 
under  the  statute;  and  whether  conceived  at  the  time  of 
the  taking,  or  subsequently  thereto,  if  carried  out,  made 
the  offense  complete. 

United  States  vs  Sanche  was  the  upholding  of  a  con- 
spiracy indictment  under  Section  5440,  for  a  violation  of 


554  Federal  Criminal  Law  Procedure. 

5358.  Other  cases  bearing  upon  different  features  of 
this  section  are  United  States  vs.  Kessler,  26  Federal 
Cases,  766;  United  States  vs.  Pitman,  27  Federal  Case, 
540;  United  States  vs.  Smiley,  27  Federal  Cases,  1132. 

§  329.  Attacking  Vessel  with  Intent  to  Plunder.— 
Because  of  Section  272  of  the  new  Code,  heretofore  not- 
ed, Section  298  of  the  new  Code,  which  is  a  re-enactment 
of  Section  5361  of  the  old  statutes  does  not  enumerate 
the  waters  upon  which  the  offense  may  be  committed, 
and  Section  298  is  in  the  following  words: 

"Sec.  298.  Whoever,  upon  the  high  seas  or  on  any  other  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
by  surprise  or  by  open  force,  maliciously  attacks  or  sets  upon  any 
vessel  belonging  to  another,  with  an  intent  unlawfully  to  plunder  the 
same,  or  to  despoil  any  owner  thereof  of  any  moneys,  goods,  or  mer- 
chandise laden  on  board  thereof,  shall  be  fined  not  more  than  five 
thousand   dollars   and   imprisoned   not  more   than   ten   years." 

United  States  vs.  Stone,  8  Federal,  232,  cited  supra. 

§  330.  Breaking  and  Entering  Vessel,  Etc. — By 
changing  old  Section  5362  so  as  to  limit  it  to  offenses 
that  are  committed  out  of  the  jurisdiction  of  any  par- 
ticular State,  such  section  becomes  Section  299  of  the 
new  Code,  in  the  following  words: 

"Sec.  299.  Whoever,  upon  the  high  seas,  or  on  any  other  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
and  out  of  the  jurisdiction  of  any  particular  State,  breaks  or  enters  any 
vessel,  with  intent  to  commit  any  felony,  or  maliciously  cuts,  spoils, 
or  destroys  any  cordage,  cable,  buoys,  buoy  rope,  head  fast,  or  other 
fast,  fixed  to  the  anchor  or  moorings  belonging  to  any  vessel,  shall 
be  fined  not  more  than  one  thousand  dollars  and  imprisoned  not  more 
than  five  years." 

§  331.  Owner  Destroying  Vessel  at  Sea. — Old  Sec- 
tion 5365  denounced  the  acts  only  when  committed  upon 
the  high  seas.  New  Section  300  so  broadens  the  offense 
as  to  include  all  the  waters  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States,  and  reads  as 
follows: 

"Sec.  300.  Whoever,  upon  the  high  seas  or  on  any  other  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
wilfully  and   corruptly  casts  away  or  otherwise   destroys  any  vessel, 


Piracy  and  Other  Offenses  upon  the  High  Seas.  555 

of  which  he  is  owner,  in  whole  or  in  part,  with  intent  to  prejudice 
any  person  that  may  underwrite  any  policy  of  insurance  thereon,  of 
any  merchant  that  may  have  goods  thereon,  or  any  other  owner  of 
such  vessel,  shall  be  imprisoned  for  life  or  for  any  term  of  years." 

§  332.  Other  Persons  Destroying  or  Attempting  to 
Destroy  Vessel  at  Sea.— Section  301  of  the  new  Code 
takes  the  place  of  old  Sections  5366  and  5367,  by  incor- 
porating both  the  act  and  the  attempt  to  perform  the 
act  of  destruction,  and  is  in  the  following  words: 

"Sec.  301.  Whoever,  not  being  an  owner,  upon  the  high  seas  or 
on  any  other  waters  within  the  admiralty  and  maritime  jurisdiction 
of  the  United  States,  wilfully  and  corruptly  casts  away  or  otherwise 
destroys  any  vessel  of  the  United  States  to  which  he  belongs,  or, 
wilfully,  with  intent  to  destroy  the  same,  sets  fire  to  any  such  vessel, 
or  otherwise  attempts  the  destruction  thereof,  shall  be  imprisoned 
not  more  than  ten  years." 

The  Act,  it  will  be  noted,  covers  the  offense  not  only 
upon  the  high  seas,  as  did  the  original  statutes,  but  upon 
any  other  waters  within  the  admiralty  and  maritime 
jurisdiction  of  the  United  States.  In  United  States  vs. 
Vanranst,  28  Federal  Case,  No.  16608,  the  Court  held 
that  the  offense  was  complete  under  this  section  if  the 
mate  destroyed  the  vessel,  even  though  he  had  no  in- 
terest therein,  and  even  though  the  plan  for  its  destruc- 
tion was  laid  before  the  sailing  by  the  owner  himself. 
See  also  United  States  vs.  Jacobson,  26  Federal  Cases, 
No.  16461.  See  also  United  States  vs.  Wilson,  28  Fed- 
eral Case,  718;  U.  S.  vs.  McAvoy,  26  Federal  Case,  1044. 

§  333.  Robbery  on  Shore  by  Crew  of  Piratical  Ves- 
sel.— Section  5371  becomes  Section  302  of  the  new  Code 
as  follows: 

"Sec.  302.  Whoever,  being  engaged  in  any  piratical  cruise,  or  en- 
terprise, or  being  of  the  crew  of  any  piratical  vessel,  lands  from  such 
vesseL  and  on  shore  commits  robbery,  is  a  pirate,  and  shall  be  im- 
prisoned for  life." 

In  the  construction  of  the  general  terms  "piratical 
cruise,"  of  his  section,  the  pleader  will  look  to  the  def- 
inition of  piracy,  as  heretofore  given. 

§  334.    Arming  Vessel  to  Cruise  Against  the  Citizens 


556  Federal  Criminal  Law  Procedure. 

of  the  United  States. — Section  303  of  the  new  Code  takes 
the  place  of  old  Section  5284,  and  is  as  follows: 

"Sec.  303.  Whoever,  being  a  citizen  of  the  United  States,  without 
the  limits  thereof,  fits  out  and  arms,  or  attempts  to  fit  out  and  arm, 
or  procures  to  be  fitted  out  and  armed,  or  knowingly  aids  or  is  con- 
cerned in  furnishing,  fitting  out,  or  arming,  any  private  vessel  of 
war,  or  privateer,  with  intent  that  such  vessel  shall  be  imployed  to 
cruise  or  commit  hostilities  upon  the  citizens  of  the  United  States, 
or  their  property,  or  whoever  takes  the  command  of  or  enters  on 
board  of  any  such  vessel,  for  such  intent,  or  who  purchases  any  in- 
terest in  any  vessel  with  a  view  to  share  in  the  profits  thereof,  shall 
be  fined  not  more  than  ten  thousand  dollars  and  imprisoned  not  more 
than  ten  years.  The  trial  for  such  offense,  if  committed  without  the 
limits  of  the  United  States,  shall  be  in  the  district  in  which  the  offen- 
der shall  be  apprehended  or  first  brought." 

See  United  States  vs.  Howard,  3  Wash.,  430;  26  Fed- 
eral Case,  390. 

§  335.  Piracy  Under  Color  of  a  Foreign  Commission. 
— Section  5373  of  the  old  Statute  becomes  Section  304  of 
the  new  Code,  as  follows: 

"Sec.  304.  Whoever,  being  a  citizen  of  the  United  States,  commits 
any  murder  or  robbery,  or  any  act  of  hostility  against  the  United  States, 
or  against  any  citizen  thereof,  on  the  high  seas,  under  color  of  any 
commission  from  any  foreign  prince,  or  state,  or  on  pretense  of  author- 
ity from  any  person,  is,  notwithstanding  the  pretense  of  such  authority, 
a  pirate,  and  shall  be  imprisoned  for  life." 

See  United  States  vs.  Palmer,  3  Wheat,,  610;  United 
States  vs.  Baker,  5  Blatchf.,  6;  24  Federal  Cases,  962; 
United  States  vs.  Hutchings,  26  Federal  Case,  440;  Unit- 
ed States  vs.  Terrel,  1  Federal  Case,  999. 

§  336.  Piracy  by  Subjects  or  Citizens  of  a  Foreign 
State. — Section  305  of  the  new  Code  displaces  Section 
5374  of  the  old  statutes,  and  is  as  follows: 

"Sec.  305.  Whoever,  being  a  citizen  or  subject  of  any  foreign  state, 
is  found  and  taken  on  the  sea  making  war  upon  the  United  States, 
or  cruising  against  the  vessels  and  property  thereof,  or  of  the  citizens 
of  the  same,  contrary  to  the  provisions  of  any  treaty  existing  between 
the  United  States  and  the  state  of  which  the  offender  is  a  citizen 
or  subject,  when  by  such  treaty  such  acts  are  declared  to  be  piracy, 
is  guilty  of  piracy,  and  shall  be  imprisoned  for  life." 


Piracy  axd  Other  Offenses  upon  the  High  Seas.  55*3 

§  337.  Running  Away  with  or  Yielding  up  Vessel  or 
Cargo.— Old  Section  5383  becomes  new  Section  306  in 
the  following  words: 

"Sec.  306.  Whoever,  being  a  captain  or  other  officer  or  mariner 
of  a  vessel  upon  the  high  seas  or  on  any  other  waters  within  the 
admiralty  and  maritime  jurisdiction  of  the  United  States,  piratically 
or  feloniously  runs  away  with  such  vessel,  or  with  any  goods  or  mer- 
chandise thereof,  to  the  value  of  fifty  dollars,  or  who  yields  up  such 
vessel  voluntarily  to  any  pirate,  shall  be  fined  not  more  than  ten 
thousand  dollars,  or  imprisoned  not  more  than  ten  years,  or  both." 

In  United  States  vs.  Tully,  28  Federal  Case,  16545,  the 
intent  must  be  alleged  and  proven,  as  in  other  criminal 
cases  requiring  such  proof  and  allegation;  but  the  parat- 
ical  and  felonious  running  away  with  a  vessel  does  not 
mean  that  personal  force  and  violence  must  have  been 
used.  See  also  United  States  vs.  Howard,  26  Federal 
Case,  15404;  United  States  vs.  Kessler,  26  Federal  Case, 
15528. 

§  338.  Confederating,  Etc.,  with  Pirates. — New  Sec- 
tion 307  takes  the  place  of  old  Section  5384,  and  is  in  the 
following  words: 

"Sec.  307.  Whoever  attempts  or  endeavors  to  corrupt  any  com- 
mander, master,  officer,  or  mariner  to  yield  up  or  to  run  away  with 
any  vessel,  or  with  any  goods,  wares,  or  merchandise,  or  to  turn 
pirate,  or  to  go  over  to  or  confederate  with  pirates,  or  in  any  wise 
to  trade  with  any  pirate,  knowing  him  to  be  such,  or  furnishes  such 
pirate  with  any  ammunition,  stores,  or  provisions  of  any  kind,  or 
fits  out  any  vessel  knowingly  and,  with  a  design  to  trade  with,  supply, 
or  correspond  with  any  pirate  or  robber  upon  the  seas;  or  whoever 
consults,  combines,  confederates,  or  corresponds  with  any  pirate  or 
robber  upon  the  seas,  knowing  him  to  be  guilty  of  any  piracy  or 
robbery;  or  whoever,  being  a  seaman,  confines  the  master  of  any 
vessel,  shall  be  fined  not  more  than  one  thousand  dollars  and  impris- 
oned not  more  than  three  years." 

See  U.  S.  vs.  Howard,  26  Federal  Cases,  390. 

§  339.  Sale  of  Arms  and  Intoxicants  Forbidden  in 
Pacific  Islands.— The  Act  of  February  14,  1902,  32  Stat- 
ute at  Large,  33,  becomes  Section  308  of  the  new  Code, 
in  the  following  words: 

"Sec.  308.  Whoever,  being  subject  the  authority  of  the  United 
States,   shall   give,   sell,   or  otherwise   supply  any   arms,  ammunition, 


558  Federal  Criminal  Law  Procedure. 

explosive  substance,  intoxicating  liquor,  or  opium  to  any  aboriginal 
native  of  any  of  the  Pacific  Islands  lying  within  the  twentieth  par- 
allel of  north  latitude  and  the  fortieth  parallel  of  south  latitude, 
and  the  one  hundred  and  twentieth  meridian  of  longitude  west  and 
the  one  hundred  and  twentieth  meridian  of  longitude  east  of 
Greenwich,  not  being  in  the  possession  or  under  the  protection  of 
any  civilized  power,  shall  be  fined  not  more  than  fifty  dollars  or 
imprisoned  not  more  than  three  months,  or  both.  In  addition  to  such 
punishment,  all  articles  of  a  similar  nature  to  those  in  respect  to 
which  an  offense  has  been  committed,  found  in  the  possession  of 
the  offender,  may  be  declared  forfeited.  If  it  shall  appear  to  the 
court  that  such  opium,  wine,  or  spirits  have  been  given  bona  fide 
for  medical  purposes,  it  shall  be  lawful  for  the  court  to  dismiss  the 
charge." 

§  340.  Offenses  Under  Preceding  Section  Deemed  on 
High  Seas. — Another  part  of  the  Act  of  February  14, 
1902,  becomes  Section  309  of  the  new  Code,  as  follows: 

"Sec.  309.  All  offenses  against  the  provisions  of  the  section  last 
preceding,  committed  on  any  of  said  islands,  or  on  the  waters,  rocks, 
or  keys  adjacent  thereto,  shall  be  deemed  committed  on  the  hign 
seas  on  board  a  merchant  ship  or  vessel  belonging  to  the  United  States, 
and   the  courts   of  the   United   States   shall   jurisdiction   accordingly.'' 

Sec.  340a.    High  Seas  and  Decisions. 

For  discussion  of  high  seas  and  jurisdiction  of  United 
States  courts  see  Miller  vs.  U.  S.,  242  F.  907. 

A  high  sea  crime  is  triable  in  any  district  where  the  de- 
fendant is  found  or  into  which  he  is  first  brought.  Peder- 
sen  vs.  U.  S.,  £71  F.  187,  but  this  does  not  mean  tempo- 
rary stopping  of  a  ship  as  at  quarantine  station. 

§  341.  Vessels  of  the  United  States  Denned. — Section 
310  of  the  new  Code  reads  as  follows: 

"Sec.  310.  The  words  'vessel  of  the  United  States,'  wherever  they 
occur  in  this  chapter,  shall  be  construed  to  mean  a  vessel  belonging 
in  whole  dr  in  part  to  the  United  States,  or  any  citizen  thereof,  or 
any  corporation  created  by  or  under  the  laws  of  the  United  States,  or 
of  any  State,  Territory,  or  District  thereof." 


CHAPTER  XVI. 

CERTAIN  OFFENSES   IN  THE  TERRITORIES. 

§  342.     No  Conflict  Between  Territory  Code  and  United  States  Code: 
New  Code,  311. 

343.  Circulation   of   Obscene   Literature,   Promoting   Abortion,   How 

Punished:     5389—312. 

344.  Polygamy:    5352—313 

345.  Unlawful  Cohabitation:    New  Code,  314. 

346.  Joinder  of  Counts:     New  Code,  315. 

347.  Decisions  on  Foregoing  Statutes. 

348.  Adultery:     I    Sup.,    568—316. 

349.  Incest:     I   Sup.,  568—317. 

350.  Fornication:     I  Sup.,  568—318. 

351.  Certificates  of  Marriage;     Penalty  for  Failure  to  Record. 

352.  Prize  Fights,  Bull  Fights,  etc.,  II  Sup.,  446—320. 

353.  "Pugilistic  Encounter"  Defined:     II   Sup.,  446—321. 

354.  Train  Robberies  in  Territories,  Etc.:    New  Code,  322. 

§  324.  Territory  Code  and  U.  S.  Code.— The  Code 
provides  certain  specific  offenses  for  the  territories  of  the 
United  States  and  if  there  be  in  any  territory  a  statute 
relating  to  a  like  matter,  such  statute  ceases  to  be  controll- 
ing. In  other  words,  the  law  of  the  parent  government 
is  paramount.  I'he  legislation  of  Congress  will  super- 
sede the  legislation  of  a  state  or  territory,  without  specific 
provisions  to  that  effect,  in  those  cases  wherein  the  same 
matter  is  the  subject  of  legislature  by  both.  There  the 
action  of  Congress  may  well  be  considered  as  covering  the 
entire  ground.  David  vs.  Beason,  133  U.  S.,  33.  Chan- 
cellor Kent  in  1st  Com.,  page  387,  says  on  this  subject, 
"Two  distinct  laws  cannot  at  the  same  time  be  exercised 
in  relation  to  the  same  subject,  effectually,  and  at  the 
same  time  be  compatible  with  each  other.  If  they  cor- 
respond in  every  respect  then  the  latter  is  idle  and  in- 
operative. If  they  differ  they  must,  in  the  nature  of 
things,  oppose  each  other  so  far  as  they  do  differ. ';  The 
Supreme  Court  of  the  United  States  in  Passenger  Cases, 
7  How.,  394,  said,  "A  concurrent  power  excludes  the  idea 
of  a  dependent  power.  The  general  government,  and  a 
state,  exercise  concurrent  powers  in  taxing  the  people  of 
the  State.  The  object  of  taxation  may  be  the  same, 
but  the  motives  and  policy  of  the  tax  are  different  and 

(559) 


560  Federal  Criminal  Law  Procedure. 

the  powers  are  distinct  and  independent.  A  concurrent 
power  in  two  distinct  sovereignties  to  regulate  the  same 
thing  is  as  inconsistent  in  principle  as  it  is  impracticable 
in  action.  It  involves  a  moral  and  physical  impossibility. 
A  joint  action  is  not  supposed  and  two  independent  wills 
cannot  do  the  same  thing.  The  action  of  one,  unless 
there  be  an  arrangement,  must  necessarily  precede  the 
action  of  the  other;  and  that  which  is  first,  being  com- 
petent, must  establish  the  rule.  If  the  powers  be  equal, 
as  must  be  the  case,  both  being  sovereign,  one  may  un- 
do what  the  other  does,  and  this  must  be  the  result  of 
their  action."  In  Kie  vs.  U.  S.,  27  Federal,  351,  the 
Court  said,  "No  law  of  Oregon  is  to  have  effect  in  Alaska 
if  it  is  in  conflict  with  a  law  of  the  United  States.  There 
is  such  a  conflict,  within  the  meaning  of  the  statute,  not 
only  when  these  laws  contain  different  provisions  on  the 
same  subject,  but  when  they  contain  similar  or  identical 
ones.  In  the  latter  case,  it  is  the  law  of  Congress  that 
applies  and  not  that  of  the  State.  See  also  U.  S.  vs.  Clark, 
46  Federal,  633.  In  re  Nelson  69  Federal,  712.  The 
national  government  is  supreme  and  territorial  govern- 
ments are  subordinate  thereto. 

There  will  be  no  confusion  in  the  application  of  this 
doctrine  as  between  a  territory  of  the  United  States  and 
the  United  States  and  a  state  and  the  United  States.  It 
will  be  remembered  that  a  state  is  a  sovereignty  just  as 
surely  as  the  Federal  Government  is  a  sovereignty  and 
each  has  the  legal  right  to  protect  its  own  people  against 
the  same  act  by  a  statute  denouncing  the  act  as  an  offense 
and  both  statutes  would  be  the  law.  In  other  words,  as 
stated  in  Moore  vs.  Illinois  by  the  Supreme  Court  of  the 
United  States,  every  citizen  of  the  United  States  is  also 
a  citizen  of  a  State  or  Territory.  He  may  be  said  to  owe 
allegiance  to  two  sovereigns  and  may  be  liable  to  punish- 
ment for  an  infraction  of  the  laws  of  either.  The  same 
act  may  be  an  offense  or  transgression  of  the  laws  of  both. 
That  either  or  both  may  punish  such  an  offender  cannot 
be  doubted,  yet  it  cannot  be  truly  averred  that  defendant 
has  been  twice  punished  for  the  same  offense,  but  only 
that  by  one  act  he  has  committed  two  offenses,  for  each 
of  which  h^  i-s  justly  punishable.    He  could  not  plead  the 


Certain  Offenses  in  the  Territories.  561 

punishment  by  one  in  bar  to  a  conviction  by  the  other. 
A  state  ^  may  punish  the  offense  of  uttering  or  passing 
false  coin  as  a  cheat  or  fraud  practiced  on  its  citizens. 
Fox  vs.  State,  5  How.,  432.  In  the  case  of  the  United 
States  vs.  Marigold,  9  How.,  560,  it  is  held  that  Congress, 
in  the  proper  exercise  of  its  authority,  may  punish  the 
same  act  as  an  offense  against  the  United  States.  In 
Snow  vs.  U.  S.  18  Wall,  317,  it  was  said  that  "Strictly 
speaking,  there  is  no  sovereignty  in  a  territory  of  the 
United  States,  but  that  of  the  United  States  itself." 

The  case  of  Moore  vs.  Illinois,  cited  above,  may  be  con- 
sidered most  liberal  in  a  dictum  definition  of  state  sover- 
eignty. The  trend  of  the  decisions  of  the  Supreme  Court 
of  the  United  States  since  then  is  that  when  the  Federal 
Government  enters  a  field  even  of  civil  legislation,  it  be- 
comes exclusive  and  its  statutes  are  the  paramount  law. 
In  other  words  the  United  States  is  the  superior  sover- 
eignty, as  has  been  announced  most  recently  in  the  Hours 
of  Service  cases,  wherein  the  Supreme  Court  held  that 
since  the  Federal  Government  had  by  statute  fixed  a 
limit  to  the  hours  of  service,  a  state  statute  fixing  a  dif- 
ferent limit  was  void.  Of  course  it  will  be  remembered 
that  there  are  some  jurisdictions  into  which  the  Federal 
Government  cannot  enter.  They  belong  exclusively  to 
the  State. 

The  offenses  herein  treated  of  are  not  confined  to  the 
Territories,  but  are  punishable  if  committed  within  or 
upon  any  place  within  the  exclusive  jurisdiction  of  the 
United  States,  such  as  forts  or  arsenals,  Government 
reservations,  public  building,  sites,  etc.,  as  is  shown  by 
Section  311,  which  reads  as  follows: 

"Sec.  311.  Except  as  otherwise  expressly  provided,  the  offenses 
defined  in  this  chapter  shall  be  punished  as  hereinafter  provided, 
when  committed  within  any  Territory  or  District,  or  within  or  upon 
any  place  within  the  exclusive  jurisdiction  of  the  United  States." 

§  343.  Circulation  of  Obscene  Literature;  Promoting 
Abortion;  How  Punished. — Section  312  of  the  new  Code 
includes  practically  all  of  the  elements  of  the  statute  re- 
lating to  the  abuse  of  the  United  States  mails  in  the  trans- 
mission  of  obscene,   etc.,  matter,    and  of  the   Interstate 

36 


562  Federal  Criminal  Law  Procedure. 

Commerce  Statute,  which  relates  to  the  shipping  or  carry- 
ing of  obscene  matter,  etc.  Section  312  of  the  new  Code 
is  in  the  following  language,  which  displaces  all  provi- 
sions of  old  Section  5389: 

"Sec.  312.  Whoever  shall  sell,  lend,  give  away,  or  in  any  manner 
exhibit,  or  offer  to  sell,  lend,  give  away,  or  in  any  manner  exhibit, 
or  shall  otherwise  publish  or  offer  to  publish  in  any  manner,  or  shall 
have,  in  his  possession  for  any  such  purpose,  any  obscene  book,  pam- 
phlet, paper,  writing,  advertisement,  circular,  print,  picture,  drawing,  or 
other  representation,  figure,  or  image  on  or  of  paper  or  other  ma- 
terial, or  any  cast,  instrument,  or  other  article  of  an  immoral  nature 
or  any  drug  or  medicine,  or  any  article  whatever,  for  the  prevention 
of  conception,  or  for  causing  unlawful  abortion,  or  shall  advertise  the 
same  for  sale,  or  shall  write  or  print,  or  cause  to  be  written  or  printed, 
any  card,  circular,  book,  pamphlet,  advertisement,  or  notice,  of  any 
kind,  stating  when,  where,  how,  or  of  whom,  or  by  what  means,  any 
of  the  articles  above  mentioned  can  be  purchased  or  obtained,  or 
shall  manufacture,  draw,  or  print,  or  in  any  wise  make  any  of  such 
articles,  shall  be  fined  not  more  than  two  thousand  dollars,  or  im- 
prisoned not  more  than  five  years,  or  both." 

§  344.  Polygamy. — Section  313  of  the  new  Code  dis- 
places old  Statute  5352,  and  the  Act  of  March  22,  1882, 
shown  in  First  Supplement,  331,  and  is  in  the  following 
language: 

"Sec.  313.  Every  person  who  has  a  husband  or  wife  living,  who 
marries  another,  whether  married  or  single,  and  any  man  who 
simultaneously,  or  on  the  same  day,  marries  more  than  one  woman, 
is  guilty  of  polygamy,  and  shall  be  fined  not  more  than  five  hundred 
dollars  and  imprisoned  not  more  than  five  years.  But  this  section 
shall  not  extend  to  any  person  by  reason  of  any  former  marriage  whose 
husband  or  wife  by  such  marriage  shall  have  been  absent  for  five  suc- 
cessive years,  and  is  not  known  to  such  person  to  be  living,  and  is 
believed  by  such  person  to  be  dead,  nor  to  any  person  by  reason  of 
any  former  marriage  which  shall  have  been  dissolved  by  a  valid  decree 
of  a  competent  court,  nor  to  any  person  by  reason  of  any  former  mar- 
riage which  shall  have  been  pronounced  void  by  a  valid  decree  of  a 
competent  court,  on  the  ground  of  nullity  of  the  marriage  contract." 

§  345.  Unlawful  Cohabitation. — Section  314  of  the 
new  Code  reads  as  follows: 

"Sec.  314.  If  any  male  person  cohabits  with  more  than  one  woman 
he  shall  be  fined  not  more  than  three  hundred  dollars,  or  imprisoned 
not  more  than  six  months,  or  both." 


Certain  Offenses  in  the  Territories.  563 

§  346.  Joinder  of  Counts.— Section  315,  which  per- 
mits joinder  in  the  same  indictment  of  charges  under  the 
two  above  mentioned  sections,  is  as  follows: 

"Sec.  315.  Counts  for  any  or  all  of  the  offenses  named  in  the  two 
sections  last  preceding  may  be  joined  in  the  same  information  or  in- 
dictment." 

§  347.  Decisions.— The  offense  of  polygamy,  as  dis- 
tinguished from  open  and  notorious  cohabitation,  was  not 
an  offense  under  the  Common  Law,  and,  therefore,  is 
statutory  in  this  country.  The  Supreme  Court  of  the 
United  States,  in  the  Miles  Case,  103  U.  S.,  311,  announc- 
ed the  doctrine  that  the  proof  of  marriage  will  not  be 
limited  to  only  such  witnesses  as  were  eyewitnesses. 
Cohabitation  and  reputation  of  being  husband  and  wife 
are  usually  considered  together  in  questions  concerning 
the  proof  of  marriage.  This  was  followed  in  United 
States  vs.  Higgerson,  Volume  46,  Federal  Reporter,  750. 
It  is  always  pertinent,  under  the  offense  of  bigamy  and 
adultery  and  kindred  offenses,  to  prove  the  marriage  rela- 
tion. In  the  leading  case  of  Cannon  vs.  United  States, 
116  U.  S.,  page  55;  29  Law  Ed.,  561,  the  Supreme  Court 
held  that  a  man  "cohabits"  with  more  that  one  woman 
when  holding  out  to  the  world  two  or  more  women  as  his 
wives,  by  his  language  or  conduct,  or  both,  and  when  he 
lives  in  the  same  house  with  them,  and  eats  at  the  table 
of  each  a  portion  of  the  time,  although  he  may  not  occupy 
the  same  bed,  sleep  in  the  same  room,  or  actually  have 
sexual  intercourse  with  either  of  them. 

In  ex  parte  Snow,  120  U.  S.,  274,  30  Law  Ed.,  658,  the 
Supreme  Court  held  that  cohabiting  was  a  continuous 
offense,  and  can  be  committed  but  once  for  the  purpose 
of  indictment  or  prosecution,  prior  to  the  time  the  pro- 
secution is  instituted;  and  a  grand  jury  cannot  divide 
the  offense  into  separate  offenses,  and  find  separate  in- 
dictments; as,  where  a  man  unlawfully  cohabited  with 
seven  women  for  twenty-five  months,  there  could  be  but 
one  indictment. 

§  348.  Adultery.— Section  316  of  the  new  Code  takes 
the  place  of  the  Act  of  March  3,  1887,  shown  at  First 
Supplement,  568,  and  is  in  the  following  words: 


564  Federal  Criminal  Law  Procedure. 

"Sec.  316.  Whoever  shall  commit  adultery  shall  be  imprisoned  not 
more  than  three  years;  and  when  the  act  is  committed  between  a 
married  woman  and  a  man  who  is  unmarried,  both  parties  to  such 
act  shall  be  deemed  guilty  of  adultery;  and  when  such  act  is  com- 
mitted between  a  married  man  and  a  woman  who  is  unmarried,  the 
man  shall  be  deemed  guilty  of  adultery." 

See.  348a.    Adultery-Decisions. 

The  above  section  does  not  apply  to  an  Indian  on  an 
Indian  reservation,  U.  S.  vs.  Dennis  Quiver,  U.  S.  Sup.  Ct. 
Oct.  Term,  1915. 

§  349.  Incest. — Section  317  of  the  new  Code  displaces 
the  Act  of  March  3,  1887,  shown  at  First  Supplement, 
4568,  and  is  in  the  following  words: 

"Sec.  317.  Whoever,  being  related  to  another  person  within  and 
not  including  the  fourth  degree  of  consanguinity  computed  accord- 
ing to  the  rules  of  the  civil  law,  shall  marry  or  cohabit  with,  or  have 
sexual  intercourse  with  such  other  so  related  person,  knowing  her  or 
him  to  be  within  said  degree  of  relationship,  shall  be  deemed  guilty 
of  incest,  and  shall  be  imprisoned  not  more  than  fifteen  years." 

Incest  was  not  an  offense  at  Common  Law,  though  it 
was  punished  in  the  churches.  The  language  of  the  stat- 
ute demands  knowing  intercourse  between  parties  re- 
lated within  the  fourth  degree  of  consanguinity,  such  re- 
lationship to  be  computed  according  to  the  rules  of  the 
Civil  Law.  It  will  be  borne  in  mind  that  the  method  of 
computing  relationship  differs  in  the  Canon  Law,  as 
adopted  into  the  Common  Law,  and  the  Civil  Law.  In 
other  words,  under  the  Canon  Law,  or  the  Common  Law, 
the  computing  begins  at  the  common  ancestor,  and 
reckons  downward,  and  in  whatever  degree  the  two  per- 
sons, or  the  most  remote,  is  distant  from  the  common 
ancestor,  that  is  the  degree  in  which  they  are  related. 
The  method  in  the  Civil  Law  is  to  count  upward  from 
either  of  the  persons  related,  to  the  common  ancestor,  and 
then  downward  to  the  other,  reckoning  a  degree  for  each 
person,  both  ascending  and  descending.  In  other  words, 
the  Canonists  took  the  number  of  degrees  in  the  longest 
line;  the  Civilians,  the  sum  of  the  degrees  in  both  lines. 
Anderson's  Dictionary  of  Law,  229;  2  Blackstone's  Com- 
mentary, 206-207;  4  Kent,  412;  2  Litt.  Coke,  158.    Under 


Certain  Offenses  in  the  Territories.  565 

this  statute,  it  is  also  necessary  that  the  indictment  al- 
lege, and  the  proof  show,  the  fact  of  knowledge  of  such 
degree  of  relationship. 

§'  350.  Fornication.— Section  318  of  the  new  Code, 
which  is  also  a  part  of  the  Act  of  March  3,  1887,  First 
Supplement,  568,  reads  as  follows: 

"Sec.  318.  If  any  unmarried  man  or  woman  commits  fornication, 
each  shall  be  fined  not  more  than  one  hundred  dollars,  or  imprisoned 
not  more  than  six  months." 

§  351.  Cerificates  of  Marriage;  Penalty  for  Failure  to 
Record.— From  the  Act  of  March  3,  1887,  First  Supple- 
ment, 568,  comes  Section  319  of  the  new  Code,  as  follows: 

"Sec.  319.  Every  ceremony  of  marriage,  or  in  the  nature  of  a 
marriage  ceremony  of  any  kind,  whether  either  or  both  or  more  of 
the  parties  to  such  ceremony  be  lawfully  competent  to  be  the  sub- 
ject of  such  marriage  or  ceremony  or  not,  shall  be  certified  by  a  cer- 
tificate stating  the  fact  and  nature  of  such  ceremony,  the  full  name  of 
each  of  the  parties  concerned  and  the  full  name  of  every  officer,  priest, 
and  person,  by  whatever  style  or  designation  called  or  known,  in  any 
way  taking  part  in  the  performance  of  such  ceremony,  which  certifi- 
cate shall  be  drawn  up  and  signed  by  the  parties  to  such  ceremony  and 
by  every  officer,  priest,  and  person  taking  part  in  the  performance 
of  such  ceremony,  and  shall  be  by  the  officer,  priest,  or  other  person 
solemnizing  such  marriage  or  ceremony  filed  in  the  office  of  the 
probate  court,  or,  if  there  be  none,  in  the  office  of  the  court  having 
probate  powers  in  the  county  or  district  in  which  such  ceremony 
shall  take  place,  for  record,  and  shall  be  immediately  recorded,  and 
be  at  all  times  subject  to  inspection  as  other  public  records.  Such 
certificate,  or  the  record  thereof,  or  a  duly  certified  copy  of  such 
record,  shall  be  prima  facie  evidence  of  the  facts  required  by  this 
section  to  be  stated  therein  in  any  proceeding,  civil  or  criminal,  in 
which  the  matter  shall  be  drawn  in  question.  But  nothing  in  this 
section  shall  be  held  to  prevent  the  proof  of  mariages,  whether  law- 
ful or  unlawful,  by  any  evidence  othewise  legally  admissible  for  that 
purpose.  Whoever  shall  wilfully  violate  any  provision  of  this  section 
shall  be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  two  years,  or  both.  The  provisions  of  this  section  shall 
apply  only  within   the  Territories   of  the   United   States." 

It  will  be  noted  that  this  section  applies  only  in  the 
Territories,  and,  therefore,  it  would  seem  that  the  general 
provisions  of  Section  311  of  this  chapter  are  excepted 
by  this  special  provision  in  Section  319. 


566  Federal  Criminal  Law  Procedure. 

§  352.  Prize  Fights,  Bull  Fights,  Etc.— From  the  Act 
of  February  7,  1896,  Second  Supplement,  446,  is  taken  in 
substance  Section  320  of  the  new  Code,  in  the  following 
language: 

"Sec.  320.  Whoever  shall  voluntarily  engage  in  a  pugilistic  en- 
counter between  man  and  man  or  a  fight  between  a  man  and  a  bull 
or  any  other  animal,  for  money  or  for  other  thing  of  value,  or  for 
any  championship,  or  upon  the  result  of  which  any  money  or  any- 
thing of  value  is  bet  or  wagered,  or  to  see  which  any  admission  fee 
is  directly  or  indirectly  charged,  shall  be  imprisoned  not  more  than 
five  years.  The  provisions  of  this  section  shall  apply  only  within 
the  Territories  of  the  United  States  and  the  District  of  Columbia." 

§  353.  Pugilistic  Encounter  Defined. — From  the  same 
last  above  mentioned  Act  also  comes  the'  definition  of 
"pugilistic  encounters,"  as  shown  in  Section  321  of  the 
new  Code,  as  follows : 

"Sec.  321.  By  the  term  "pugilistic  encounter,"  as  used  in  the  sec- 
tion last  preceding,  is  meant  any  voluntary  fight  by  blows  by  means 
of  fists  or  otherwise,  whether  with  or  without  gloves,  between  two 
or  more  men,  for  money  or  for  a  prize  of  any  character,  or  for  any 
other  thing  of  value,  or  for  any  championship,  or  upon  the  result 
of  which  any  money  or  anything  of  value  is  bet  or  wagered,  or  to 
see  which  any  admission  fee  is  directly  or  indirectly  charged." 

§  354.  Train  Robberies  in  Territories,  Etc.— Sec- 
tion 322  of  the  new  Code  contains  all  of  the  elements 
of  the  Act  of  July  1,  1902,  and  is  in  the  following  words: 

"Sec.  322.  Whoever  shall  wilfully  and  maliciously  trespass  upon 
or  enter  upon  any  railroad  train,  railroad  car,  or  railroad  locomotive, 
with  the  intent  to  commit  murder,  or  robbery,  shall  be  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more  than  twenty 
years,  or  both.  Whoever  shall  wilfully  and  maliciously  trespass  upon 
or  enter  upon  any  railroad  train,  railroad  car,  or  railroad  locomotive, 
with  intent  to  commit  any  unlawful  violence  upon  or  against  any 
passenger  on  said  train,  or  car,  or  upon  or  against  any  engineer,  con- 
ductor, fireman,  brakeman,  or  any  officer  or  employee  connected  with 
said  locomotive,  train,  or  car,  or  upon  or  against  any  express 
messenger,  or  mail  agent  on  said  train  or  any  car  thereof,  or  to  com- 
mit any  crime  or  offense  against  any  person  or  property  thereon,  shall 
be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not  more 
than  one  year,  or  both.  Whoever  shall  counsel,  aid,  abet,  or  assist 
in  the  perpetration  of  any  of  the  offenses  set  forth  in  this  section 
shall    be   deemed   to   be   a    principal    therein.     Upon    the   trial    of   any 


Certain  Offenses  in  the  Territories.  567 

person  charged  with  any  offense  set  forth  in  this  section,  it  shall  not 
be  necessary  to  set  forth  or  prove  the  particular  person  against  whom 
it  was  intended  to  commit  such  offense,  or  that  it  was  intended  to 
commit   such    offense   against   any   particular    person." 

The  wilful  and  malicious  intent  cannot  be  inferred  from 
any  uncertain  statement  in  the  indictment.  It  must  be 
specifically  alleged. 


CHAPTER  XVII. 

INTERNAL  REVENUE. 

§  355.     Raising  of  Revenue,   Generally. 
355a.  Offer  of  Compromise. 

356.  Trade  or  Business  Not  to  Be  Carried  on  Until  Revenue  Paid: 

3232. 

357.  Partnerships:     3234. 

358.  Must    Exhibit    Stamps:     3239. 

359.  Rectifiers,  Liquor  Dealers,  Etc.,  Carrying  on  Business  Without 

Paying    Special    Tax,    Etc.,    3242—16. 
359a.  Indictment. 
359b.  Liquor  Dealers. 

360.  C.  0.   D.   Decisions  Under  Above. 
360a.  Delivery  to   Customer. 

361.  Fact  Cases. 

362.  Proof  of  License. 

363.  Distiller  Defrauding  or  Attempting  to  Defraud   United  States 

of  Tax  on   Spirits:     3257. 
363a.  Repeal  of  Distillery  Statute. 

364.  Breaking   Locks,    Gaining   Access,    Etc.,    3268. 

365.  Signs    to    Be    Put    Up    By    Distillers    and    Realers    and    Other 

Regulations:      3279,    3280,    3281,    3296. 
365a.  Concealment,    Etc. 

366.  Books  to  Be  Kept  by  Rectifiers  and  Wholesale  Dealers;     Pen- 

alty:    3318. 

367.  Stamps  and  Brands  to  be  Effaced  from  Empty  Cask  3324. 

368.  Re-use  of  Bottles,  Etc.,  Without  Removing  Stamps  29  Stat.  L., 

627—6. 
368a.  Must  be  Evidence  of  Re-filling. 

369.  Removing    Any    Liquors    or    Wines    Under    Any    Other    Than 

Trade.  Names;     Penalty:     3449. 

370.  Oleomargarine. 

370a.  Oleomargarine — Indictment. 

§  355.  The  question  was  early  determined  by  the  su- 
preme Court,  in  the  license  tax  cases,  5  Wallace,  462,  that 
the  power  of  the  United  States  Government  to  require 
licenses  to  be  paid  before  a  given  business  could  be  car- 
ried on  within  a  State  was  not  contrary  to  the  Constitu- 
tion, nor  against  public  policy.  The  apparent  inconsis- 
tency of  such  a  position  with  the  principle  that  the  State 
shall  have  exclusive  control  over  internal  commerce,  or 
its  own  domestic  trade,  is  onlv  apparent,  and  gives  wav 

(568") 


Internal  Revenue.  5G9 

to  the  more  paramount  principle  that  each  Government, 
State  and  National,  has  such  inherent  powers  as  belong 
to  sovereign  governments.  The  compliance  with  a  Fed- 
eral International  Revenue  tax  Statute  quarantees  no 
rights  against  the  State  tax  statutes.  If  there  be  a  tax 
both  by  the  Federal  Government  and  by  the  State  Gov- 
ernment upon  the  same  occupation,  each  tax  must  be 
paid,  and  the  paying  of  one  does  not  authorize  the  car- 
rying on  of  the  business  with  immunity  form  prose- 
cutions by  the  other  power.  So,  likewise,  the  punish- 
ment of  one  who  fails  to  comply  with  the  provisions 
of  both  Government  does  not  preclude  his  punishment 
by  the  other  Government  upon  the  doctrine  that  he 
would  be  twice  punished  for  the  same  offense.  One 
convicted  under  the  State  law  for  selling  whiskey 
and  punished,  could  also  be  convicted  and  punished 
under  the  Federal  law  for  the  same  offense.  In 
Cross  vs.  North  Carolina,  132  U.  S.,  131,  33  Law  Ed., 
287,  the  Supreme  Court  affirmed  doctrine  that  one  who 
forged  note  and  passed  it  into  books  of  National  Bank 
to  deceive  examiner  was  liable  to  prosecution  in  both 
State  and  Federal  Court. 

§  355a.  Offer  of  Compromise. — Agreement  of  deputy 
not  to  prosecute  in  consideration  therefor.  Section  3229 
of  the  Revised  Statutes  authorizes  the  Commissioner  of 
Internal  Revenue,  with  the  advice  and'  consent  of  the 
Secretary  of  the  Treasury,  and  the  Attorney  General,  to 
compromise  any  civil  or  criminal  case  arising  under  the 
internal  revenue  laws.  Such  compromise  may  be  made 
even  after  a  suit  or  prosecution  has  been  commenced.  In 
the  case  of  Willingham  vs.  U.  S.,  208  Federal,  137,  the. 
Court  of  Appeals  for  the  Fifth  Circuit  held  that  where  a 
deputy  internal  revenue  collector  promised  the  defendant 
that  if  he  would  pay  the  tax  due  and  the  penalty  thereon, 
that  no  prosecution  would  be  commenced,  which  offer  was 
accepted  by  the  defendant,  and  thereafter  the  Govern- 
ment instituted  prosecution,  that  the  trial  judge  should 
have  submitted  to  the  jury  a  special  charge  setting  forth 
such  offer  to  compromise  as  a  binding  agreeement  with 
the  Government  and  a  failure  to  give  such  special  charge 
was  error. 


570  Federal  Criminal  Law  Procedure. 

The  decision,  instead  of  being  based  upon  the  defend- 
ant having  purchased  immunity,  is  predicated  upon  the 
statute  authorizing  the  Government's  chief  revenue  of- 
ficer to  effect  compromises  and  that  the  defendant  had  a 
right  to  rely  thereon,  even  though  he  did  not  follow 
the  technical  rules  prescribed  for  the  making  of  such  of- 
fers in  compromise. 

This  case  also  inferentially  speaks  of  the  severity  of  a 
punishment  which  was  a  hundred  dollars  fine  and  two 
years'  imprisonment. 

Sec.  355b.     Compromise,  Continued. 

The  acceptance  of  the  tax  and  penalty  and  the  state- 
ment that  there  would  be  no  prosecution  is  a  settled  rule 
under  the  above  statute,  Eau  vs.  U.  S.,  260  F.  131. 

The  compromise  of  a  criminal  case  likewise  prevents 
the  forfeiture  of  goods  seized  under  libel,  U.  S.  vs.  One, 
etc.,  263  F.  241. 

§  356.  Internal  Revenue  Offenses. — This  chapter  will 
not  attempt  to  deal  with  all  of  the  Federal  Internal  Reve- 
nue offenses,  but  only  such  statutes  as  are  most  frequent- 
ly violated,  and  some  of  which  are  difficult  to  find. 

Trade  or  Business  Not  to  be  Carried  On  Until  Tax  Paid. 
— Section  3232  of  the  Revised  Statutes  reads  as  follows: 

"Sec.  3232.  No  person  shall  be  engaged  in  or  carry  on  any  trade 
or  business  hereinafter  mentioned  until  he  has  paid  a  special  tax 
therefor  in  the  manner  hereinafter  provided." 

The  case  of  United  States  vs.  Clair,  2  Federal,  page  55, 
which  construes  Section  3232,  has  never  been  questioned 
as  the  proper  construction;  that  is,  that  the  provisions 
of  the  Statute  leave  no  room  for  doubt  that  the  tax 
must  be  paid  in  advance.  The  business  is  prohibited, 
except  when  thus  licensed;  and  until  the  tax  is  paid, 
it  cannot  be  lawfully  pursued.  The  case  of  United 
States  vs.  Pressy,  1  Lowell,  319,  which  arose  during  the 
Reconstruction  Period,  and  which  contained  some  dicta 
with  reference  to  carrying  on  the  business  after  an  ap- 
plication for  assessment,  will  not  be  confused  into  an 
authority  contradicting  the  Clair  case.  The  wording  of 
the  statute,  and  the  entire  spirit  thereof,  as  well  as 
the  policy  of  the  Government  that  it  shall  take  no  chan- 


Internal  Revenue.  .".,  l 

ces,  supports  the  construction  noted  in  the  Clair  case. 
The_license  must  be  first  secured. 

This  construction  is  further  supported  by  the  case  of 
the  United  States  vs.  Angell,  11  Federal,  page  34,  where- 
in the  Court  held  that  a  receipt  for  a  license  tax  is  not 
retroactive,  and  cannot  be  admitted  in  evidence  on  the 
charge  for  selling  spiritous  liquors  by  retail  during  a 
period  of  time  prior  to  its  date.  To  hold  otherwise, 
would  be  to  permit  the  violator  to  pay  his  tax  after  he 
had  become  a  dealer,  and  thus,  in  effect,  secure  a  pardon. 
Judge  Clark  says,  in  the  Angell  case: 

"Again,  the  penalty  had  been  incurred  before  the  payment  of  the 
tax,  and  the  receipt  given  would  not  operate  as  a  pardon.  The  law- 
makes  no  provision  for  such  an  effect;  nor  could  the  collector  of 
taxes  confer  it.  The  collector  could  not  pardon  the  offense;  the 
President  alone  could  do  that." 

See  also  United  States  vs.  Van  Horn,  20  Internal  R.  E. 
C,  145;  U.  S.  vs.  Devilin,  6  Blatchf.,  71;  and  Section  53 
of  the  Act  of  October  1,  1890,  page  869,  First  Volume, 
Supplement,  which  contains  the  statement  that  the  tax 
is  due  "on  commencing  any  trade  or  business." 

§  357.  Partnerships. — By  Section  3234,  it  is  provid- 
ed that  any  number  of  persons  doing  business  in  co- 
partnerships at  one  place  shall  be  required  to  pay  but  one 
special  tax;  and  so  under  the  authorities  of  United 
States  vs.  Blab,  99  U.  S.,  228;  and  United  States  vs. 
Davis,  37  Federal,  468,  the  dissolution  of  such  partner- 
ship, whereby  one  of  two  partners  who  has  paid  drops 
out,  and  the  remaining  member  of  the  firm  conducts  the 
business,  a  new  license  is  not  necessary.  If,  however, 
a  new  partner  buys  into  the  business,  a  new  tax  must  be 
paid. 

§  358.  Must  Exhibit  Stamp.— Section  3239  of  the  Re- 
vised  Statutes  reads  as  follows: 

"Sec.  3239.  Every  person  engaged  in  any  business,  avocation,  or 
employment,  who  is  thereby  made  liable  to  a  special  tax,  except  tobac- 
co peddlers,  shall  place  and  keep  conspicuously  in  his  establishment 
and  place  of  business  all  stamps  denoting  the  payment  of  said  special 
tax;  and  any  person  who  shall,  through  negligence,  fail  to  so  place 
and  keep  said  (stamp)  (stamps),  shall  be  liable  to  a  penalty  equal 
to  the   special   tax   for   which   his  business   rendered   him   liable,    and 


572  Federal  Criminal  Law  Procedure. 

the  costs  of  prosecution;  but  in  no  case  shall  said  penalty  be  less 
than  ten  dollars.  And  where  the  failure  to  comply  with  the  foregoing 
provision  of  law  shall  be  through  wilful  neglect  or  refusal,  then  the 
penalty  shall  be  double  the  amount  above  prescribed:  Provided,  That 
nothing  in  this  section  shall  in  any  way  affect  the  liability  of  any 
person  for  exercising  or  carrying  on  any  trade,  business,  or  profession, 
or  doing  any  act  for  the  exercising,  carrying  on,  or  doing  of  which 
a  special  tax  is  imposed  by  law,  without  the  payment  thereof." 

§  359.  Rectifiers,  Liquor  Dealers,  Etc.,  Carrying  on 
Business  Without  Paying  Special  Tax,  Etc. — Old  Sec- 
tion 3242  of  the  Revised  Statutes  becomes  by  the  Act  of 
March  3,  1883,  page  60,  First  Volume  Supplement,  Sec- 
tion 16,  which  provides  punishments  for  those  who  carry 
on  the  business  of  a  rectifier,  wholesale  liquor  dealer, 
retail  liquor  dealer,  wholesale  liquor  dealer  in  malt  liq- 
uors, retail  dealer  in  malt  liquors,  or,  manufacturer 
of  stills,  in  the  following  language: 

"Sec.  16.  That  any  person  who  shall  carry  on  the  business  of  a 
rectifier,  wholesale  liquor  dealer,  retail  liquor  dealer,  wholesale  dealer 
in  malt  liquors,  retail  dealer  in  malt  liquors,  or  manufacturer  of  stills, 
without  having  paid  the  special  tax  as  required  by  law,  or  who  shall 
carry  on  the  business  of  a  distiller  without  having  given  bond  as 
required  by  law,  or  who  shall  engage  in  or  carry  on  the  business  of 
a  distiller  with  intent  to  defraud  the  United  States  of  the  tax  on  the 
spirits  distilled  by  him,  or  any  part  thereof,  shall,  for  every  such 
offense,  be  fined  not  less  than  one  hundred  dollars  nor  more  than  five 
thousand  dollars  and  imprisoned  not  less  than  thirty  days  nor  more 
than  two  years." 

The  use  of  the  word  "business"  in  the  statute,  of 
course,  requires  its  use  in  the  indictment  and  proof  in 
the  testimony.  It  is  not  the  making  of  a  sale  that  the 
statute  denounces,  because  one  may  carry  on  the  busi- 
ness without  ever  making  a  sale.  So,  also,  one  may 
make  a  sale  without  carrying  on  the  business.  The  safe 
criterion  is  the  Ledbetter  decision,  170  U.  S.,  608;  42 
Law  Ed.,  1162,  which  approves  the  opinion  of  United 
States  vs.  Jackson,  1  Hughes,  531,  and  United  States 
vs.  Rennecke,  38  Federal,  847,  to  the  effect  that, 

"While  it  has  been  sometimes  held  that  proof  of  sale  to  one  per- 
son was  at  leas*  prima  facie  evidence  of  criminality,  the  real  offense 
consists  in  carrying  on  such  business;    and  if  only  a  single  sale  were 


Internal  Revenue.  573 

proved,  it  might  be  a  good  defense  to  show  that  such  sale  was  ex- 
ceptional, accidental,  or  made  under  such  circumstances  as  to  in- 
dicate that  it  was  not  the  business  of  the  offender.'' 


An  indictment  under  this  section  should  allege  the 
carrying  on  of  the  business,  the  day  on  which  it  was 
carried  'on,  the  town,  country,  and  district  in  which  it 
was  carried  on.  A  form  of  indictment  will  be  found 
herein. 

§  359a.  Indictment. — Under  the  authority  of  Hodge 
vs.  U.  S.,  191  Federal,  165,  the  Circuit  Court  of  Appeals 
for  the  Eighth  Circuit,  an  indictment  which  charged 
directly  and  succinctly  that  on  a  given  day  at  a  special 
place,  within  the  jurisdiction  of  the  trial  Court,  the  de- 
fendant did  wilfully,  unlawfully  and  feloniously  carry 
on  the  business  of  a  retail  liquor  dealer  without  having 
paid  the  special  tax  therefor  as  required  by  law,  was  un- 
questionably good. 

Sec.  359b.     Liquor  Dealers,  etc.,  Continued. 

See  section  1100. 

The  internal  revenue  statutes  were  not  repealed  by 
the  National  Prohibition  Act  unless  unconstitutional  or 
unless  punishments  differ,  etc.,  U.  S.  vs.  Sohm,  265  F. 
910;  Pinasco  vs.  U.  S.,  262  F.  400. 

Decisions  to  the  contrary  are  U.  S.  vs.  Fortman,  268 
F.  873;  Farley  vs.  U.  S.,  269  F.  721. 

For  other  decisions  concerning  this  statute  see,  Bill- 
iard vs.  U.  S.,  245  F.  837;  U.  S.  vs.  Lazzaro,  255  F.  237; 
Day  vs.  U.  S.,  229  F.  534;  Bailey  vs.  U.  S.,  259  F.  88. 

§  360.  C.  O.  D.  Decisions.— The  case  in  the  23  Fed- 
eral, page  134,  and  the  case  in  the  26  Federal,  515,  each 
of  which  holds  that  in  shipments  of  liquor,  C.  O.  D., 
the  shipper  is  a  dealer  at  the  place  of  destination,  are 
not  the  law.  By  the  ranking  and  best  line  of  authorities, 
the  sale  takes  place  at  the  point  where  the  specific  quan- 
tity is  segregated  from  the  mass;  and  as  this  takes  place 
at  the  point  from  which  the  liquor  is  shipped,  the  author- 
ities are  that  the  sale  takes  place  there,  and  that  is,  there- 
fore, the  place  where  the  license  should  be  paid. 

In  United  States  vs.  Chevallier,  107  Federal,  434,  the 
Circuit  Court  of  Appeals  for  the  Ninth  Circuit  in  a  case 
where  the  defendant  was  a  wholesale  liquor  dealer  in 


574  Federal  Criminal  Law  Procedure. 

San  Francisco,  who  maintained  a  branch  house  in  Port- 
land, bearing  his  sign,  and  where,  presumably,  samples 
of  his  trade  were  kept,  and  where  the  public  were  in- 
vited to  purchase,  the  manager  of  which  place  was  a 
salesman,  required  to  sell  judiciously,  the  right  to  cancel 
his  contracts  being  reserved  to  his  principal,  who  filled 
all  orders,  and  without  prepaying  the  freight,  deliver- 
ed the  goods  to  a  carrier  at  San  Francisco,  consigned 
to  purchasers  in  various  parts  of  the  agent's  territory; 
held,  that  the  sales  were  made  wholly  at  San  Francisco, 
notwithstanding  the  agent  may  have  been  authorized 
to  make  binding  contracts  and  collect  the  purchase 
money,  and  that  the  defendant  was  not  subject  to  the 
internal  revenue  tax  as  an  Oregon  dealer,  even  though 
his  method  of  transacting  business  may  have  been  de- 
vised purposely  to  evade  such  tax. 

In  United  States  vs.  Adams  Express  Company,  119 
Federal,  240,  an  express  company  was  charged  with  be- 
ing a  retail  liquor  dealer  on  a  state  of  facts  which  show- 
ed that  it,  as  a  common  carrier,  received  liquors  from 
liquor  companies,  and  carried  them  to  the  consignee, 
receiving  the  money,  which  it  transported  to  the  liquor 
company.  The  Court  held  that  the  title  to  the  liquors 
passed  to  the  consignee  on  delivery  to  the  express  com- 
pany, and  that  the  company  acted  as  the  vendee  in  carry- 
ing the  liquor  and  as  agent  of  the  vendor  in  collecting 
the  money,  and  was  not  therefore  a  dealer.  In  this  case, 
Judge  McPherson  reviews  the  authorities  known  as  the 
C.  0.  D.  decisions,  and  holds  as  first  indicated.  U.  S. 
Sup.  Court,  May  13,  1907,  in  Adams  Express  Company 
vs.  Ky.,  holds  State  law  making  C.  0.  D.  sale  at  delivery 
point,  unconstitutional. 

In  Burk  vs.  Piatt,  172  Federal,  777,  the  Court  held  ex- 
press companies  can  make  reasonable  regulations  refus- 
ing C.  0.  D.  shipments.  See  also  Jones  vs.  United 
States,  170  Federal,  page  1;  U.  S.  vs.  Lackey,  120  Fed- 
eral, 57;  American  Express  Company  vs.  Iowa,  196  U. 
S.,  133;  O'Neil  vs.  Vermont,  144  U.  S.;  and  U.  S.  vs. 
Parker,  121  U.  S.,  596. 

§  360a.  Delivery  to  Customer. — One  who  has  paid  a 
special  tax  entitling  him  to  retail  liquor  at  his  regular 


Inteenal  Revenue.  575 

place  of  business  does  not  violate  Section  3242,  which 
is  new  Section  16,  by  delivering  liquor  to  a  customer  at 
the  latter 's  residence,  although  the  sale  be  completed 
there.  The  Court  held  in  substance  that  it  might  be  true 
that  the  title  to  the  liquor  did  not  actually  pass  to  the 
purchaser  until  the  delivery  and  payment  were  made  at 
the  boarding  house,  but  this  legal  incident  of  the  transac- 
tion did  not  change  the  place  for  carrying  on  the  business 
from  the  drug  store,  where  the  supply  was  kept  and 
where  orders  were  received,  to  the  boarding  house,  or 
place  of  delivery.  Section  16,  old  Section  3242,  when 
read  in  connection  with  3239  which  requires  a  liquor  deal- 
er to  place  and  keep  conspicuously  in  his  establishment 
or  place  of  business  all  stamps  denoting  the  payment  of 
the  special  tax  required  of  him,  contemplates  that  the 
retail  liquor  dealer  may  carry  on  business  under  one 
license,  or  by  virtue  of  paying  one  special  tax,  only  at 
one  place  at  one  time.  Benbrook  vs.  U.  S.,  186  Federal, 
153. 

Sec.  360b.    C.  0.  D.  Decisions  Continued. 

A  tax  on  C.  0.  D.  shipments  by  a  state,  if  on  interstate 
shipments,  is  unconstitutional,  Rosenberg  vs.  Pacific 
Express  Company,  U.  S.  Sup.  Ct.  October  Term,  Apr. 
1915. 

§  361.  Fact  Cases. — In  United  States  vs.  Allen,  38 
Federal,  736,  the  facts  showed  that  the  defendant  was  en- 
gaged in  procuring  and  furnishing  to  anyone  who  would 
patronize  him,  liquors  in  quantities  less  than  five  gallons. 
He  testified  that  he  received  orders,  requiring  the  per- 
son ordering  to  pay  ten  cents  down  for  a  bottle  of  beer, 
and  when  the  beer  was  delivered,  an  extra  fifteen  cents 
as  remuneration  for  going  to  neighboring  State  to  pro- 
cure it ;  but  the  evidence  failed  to  show  that  the  defendant 
bought  specific  quantities  of  liquor  to  correspond  with 
special  orders,  but  showed  that  he  bought  beer  by  the 
case,  and  paid  for  it,  and  sold  it  to  anyone  desiring  it. 
Held,  that  the  defendant  was  a  dealer  under  this  section. 
(Syllabus.) 

In  United  States  vs.  Woods,  28  Federal  Cases  No.  16759, 
it  was  held  that  a  club  formed  for  the  purpose  of  social 
amusement,  owning  spiritous  liquors,  keeping  them  for 


576  Fedekal  Criminal  Law  Procedure. 

use  by  the  members  of  the  club,  who  were  entitled  to  such 
use  upon  payment  to  the  janitor,  which  money  went  into 
the  treasury  of  the  Club,  the  janitor  was  held  to  be  a 
retail  dealer.  So,  also,  in  United  States  vs.  Alexis  Club, 
98  Federal,  725,  it  was  held  that  a  culb  organized  for 
social  purposes  was  liable  to  the  payment  of  special  tax 
as  retail  dealer,  when  it  sold  drinks  to  its  members.  See 
also  United  States  vs.  Rolinger,  27  Federal  Case  No. 
16190a.  Neither  can  a  physician  supply  spiritous  liquors 
to  his  patients.  United  States  vs.  Smith,  45  Federal, 
115.  To  the  contrary  would  be  the  case  of  United  States 
vs.  Calhoun,  39  Federal  Reporter,  604,  which  decided  that 
an  apothecary  who  uses  spiritous  liquors  in  a  bona  fide 
way,  exclusively  in  the  preparation  of  making  up  medi- 
cines, would  not  be  subject  to  the  tax.  A  druggist,  how- 
ever, under  the  authority  of  United  States  vs.  White,  42 
Federal,  138,  is  to  be  weighed  by  the  scales  of  good  faith, 
to  ascertain  whether  he  is  using  intoxicants  solely  for  the 
compounding  of  medicines.  A  clerk  or  hired  servant, 
not  acting  for  himself,  but  as  an  employee  of  another, 
will  not  be  convicted.  United  States  vs.  White,  42  Fed- 
eral, 138;  United  States  vs.  Logan,  26  Federal  Cases  No. 
15624.  In  Quinn  vs.  Diamond,  72  Federal,  993,  commis- 
sion merchants  who  made  a  commission  upon  sales  of 
liquors  were  held  to  be  dealers.  In  United  States  vs. 
Morfew,  136  Federal,  491,  the  Court  held  that  a  druggist 
who  sold  a  medicinal  preparation  which  contained  more 
alcohol  than  was  necessary  to  preserve  the  medicinal 
properties  of  the  drugs  therein  contained,  became  liable 
to  the  payment  of  the  tax  as  a  retail  liquor  dealer. 

In  United  States  vs.  Lewis,  decided  June  '21,  1904,  the 
Court  determined  that  it  was  not  necessary  to  make  one  a 
liquor  dealer,  that  the  beverage  should  be  intoxicating. 
Hop  ale  is  also  included  in  the  term  of  the  statute  specify- 
ing malt-liquor  dealers.  For  decisions  with  reference  to 
proprietary  medicines,  such  as  Digg's  Appetizer,  Lemon 
Ginger,  and  tonics,  see  United  States  vs.  Bray,  113  Fed- 
eral, 1009;  United  States  vs.  Starnes,  37  Federal,  665; 
United  States  vs.  Stubblefield,  40  Federal,  454;  United 
vs.  Cota,  17  Federal,  734.  In  South  Carolina  vs.  United 
States,  decided  by  the  Supreme  Court  on  December  5, 


Internal  Revenue.  5  J  7 

1905,  it  was  held  that  even  a  State  must  pay  this  Federal 
tax. 

§  362.  Proof  of  License. — Under  the  authority  of  Mor- 
ris vs.  United  States,  161  Federal,  672,  the  prosecution 
makes  out  its  case  by  proving  that  the  defendant  carried 
on  the  business  at  a  certain  time  and  place;  the  payment 
of  tax  being  a  matter  of  defense,  which,  if  relied  upon, 
must  be  proved  by  the  defendant. 

Sec.  362a.     Proof  of  License  Continued. 

The  proof  concerning  the  possession  of  a  federal  license 
need  not  be  made  by  the  government,  since  it  is  a  matter 
particularly  within  the  knowledge  of  the  defendant, 
Faraone  vs.  U.  S.  259  F.  507. 

§  363.  Distiller  Defrauding  or  Attempting  to  De- 
fraud the  United  States  of  Tax  on  Spirits. — Section  3257 
of  the  Revised  Statutes  is  in  the  following  words: 

"Sec.  3257.  Whenever  any  person  engaged  in  carrying  on  the 
business  of  a  distiller  defrauds  or  attempts  to  defraud  the  United 
States  of  the  tax  on  the  spirits  distilled  by  him,  or  of  any  part  thereof, 
he  shall  forfeit  the  distillery  and  distilling  apparatus  used  by  him, 
and  all  distilled  spirits  and  all  raw  materials  for  the  production  of 
distilled  spirits  found  in  the  distillery-  and  on  the  distillery  premises, 
and  shall  be  fined  not  less  than  five  hundred  dollars  nor  more  than 
five  thousand  dollars,  and  be  imprisoned  not  less  than  six  months  nor 
more  than  three  years." 

• 

The  Court  held,  in  United  States  vs.  Ridnour,  119  Fed- 
eral, 401,  that  the  Act  establishing  bonded  warehouses, 
dated  March  3,  1877,  19  Statute  at  Large,  393,  did  not 
repeal  this  section.  This  same  case  also  held  that  apple 
brandy  was  included  in  the  general  terms  "distilled 
spirits." 

The  intent  to  defraud  must  exist  before  there  can  be 
an  offense  under  this  section.  United  States  vs.  100 
Barrels  of  Spirits,  2  Abbott,  305.  See  other  cases,-  Dob- 
bin's  Distillery  vs.  United  States,  96  U.  S.  395;  United 
States  vs.  Three  Copper  Stills,  47  Federal,  495.  On  the 
authority  of  Coffee  vs.  United  States,  116  U.  S.,  44."), 
29  Law  Ed.,  684,  a  judgment  of  acquittal  in  a  criminal 
prosecution  for  violation  of  this  section  is  conclusive  in 
favor  of  the  defendant  as  claimant  of  the  property  in- 
volved in  a  subsequent  suit  in  rem  under  the  latter  part 

37 


578  Federal  Criminal  Law  Procedure. 

of  the  statute.  See  also  109  Barrels  of  Whiskey  vs. 
United  States,  94  U.  S.,  86;  United  States  vs.  Cushman, 
1  Low.,  414. 

Sec.  363  a.     Distilleries,  etc.,  Continued. 

Illicit  distillery  acts  were  repealed  by  the  rjrohibi- 
tion  act,  U.  S.  vs.  Yuggini,  266  F.  746.     See  also  274  F.— 

See  section  3258  E.  S.  U.  S.  as  to  penalty  and  punish- 
ment, U.  S.  vs.  Buckingham,  261  F.  418. 

§  364.  Breaking  Locks;  Gaining  Access  to  Cistern, 
Etc.,  Penalty. — Section  3268  of  the  Eevised  Statutes  reads 
as  follows: 

"Sec.  3268.  Every  person  who  destroys,  breaks,  injuries,  or  tampers 
with  any  lock  or  seal  which  may  be  placed  on  any  cistern-room  or 
building  by  the  duly  authorized  officers  of  the  revenue,  or  opens  said 
lock  or  seal,  or  the  door  to  said  cistern-room  or  building,  or  in  any 
manner  gains  access  to  the  contents  therein,  in  the  absence  of  the 
proper  officer,  shall  be  fined  not  less  than  five  hundred  dollars  nor  more 
than  five  thousand  dollars,  and  be  imprisoned  not  less  than  one  year 
nor  more  than  three  years." 

In  Pilcher  vs.  United  States,  113  Federal,  248,  the 
Circuit  Court  of  Appeals  for  the  Fifth  Circuit  held  that 
an  acquittal  of  a  defendant  for  a  violation  of  Section 
3296  of  the  Revised  Statutes  did  not  preclude  prosecu- 
tion under  this  statute. 

§  365.  Signs  to  be  Put  Up  by  Distillers  and  Dealers, 
and  Other  Regulations. — Section  3279  of  the  old  Stat- 
utes requires  that  distillers  and  wholesale  dealers  shall 
keep  on  the  outside  of  the  place  of  such  business  a  sign 
carrying  the  name  of  the  firm  and  other  information. 

Section  3280  provides  that  the  distiller  shall  not  carry 
on  business  until  the  law  is  complied  with. 

Section  3281  provides  for  the  giving  of  bond  and  a 
criminal  punishment  if  this  is  not  done. 

In  Terry  vs.  United  States,  120  Federal,  483,  the  Cir- 
cuit Court  of  Appeals  for  the  Fourth  Circuit  held  that 
an  indictment  for  unlawfully  and  knowingly  carrying 
and  delivering  raw  material  to  a  distillery  was  insuf- 
ficient if  it  failed  to  state  that  such  distillery  was  not 
for  the  production  of  spirits,  and  was  also  insufficient 
if  it  did  not  set  forth  the  kind  of  raw  material  which  was 
furnished. 


Internal  Revenue.  579 

Section  3296  denounces  the  removal,  concealment,  etc., 
of  spirits  contrary  to  law,  and  fixes  a  penalty.  The  case 
of  Pilcher  vs.  United  States,  113  Federal,  248,  was  a  case 
decided  under  that  section 

§  365a.  Concealment,  Etc  — An  indictment  under 
Section  3296  is  sufficient  if  it  charges  each  element  of 
the  crime  enumerated  in  the  statute,  and  substantially 
in  the  same  language  and  it  need  not  aver  that  the  re- 
moval of  the  spirits  was  with  intent  to  defraud  the 
United  States.    Rosenfeld  vs.  U.  S.,  202  Federal,  469. 

§  366.  Books  to  be  Kept  by  Rectifiers  and  Whole- 
sale Dealers;  Penalty. — Section  3318  of  the  Revised 
Statutes  provides  as  follows: 

"Sec.  3318.  Every  rectifier  and  wholesale  liquor  dealer  shall  pro- 
vide a  book,  to  be  prepared  and  kept  in  such  form  as  may  be  pre- 
scribed by  the  Commissioner  of  Internal  Revenue,  and  shall,  on  the 
same  day  on  which  he  receives  any  foreign  or  domestic  spirits,  and 
before  he  draws  off  any  part  thereof,  or  adds  water  or  anything  there- 
to, or  in  any  respect  alters  the  same,  enter  in  such  book  and  in  the 
proper  columns  respectively  prepared  for  the  purpose,  the  date  when, 
the  name  of  the  person  or  firm  from  whom,  and  the  place  whence  the 
spirits  were  received,  by  whom  distilled,  rectified,  or  compounded, 
and  when  and  by  whom  inspected,  and,  if  in  the  original  package,  the 
serial  number  of  each  package,  the  number  of  wine-gallons  and  proof- 
gallons,  the  kind  of  spirit  and  the  number  and  kind  of  adhesive  stamps 
thereon.  And  every  such  rectifier  and  wholesale  dealer  shall,  at  the 
time  of  sending  out  of  his  stock  or  possession  any  spirits,  and  be- 
fore the  same  are  removed  from  his  premises,  enter  in  like  manner 
in  the  said  book  the  day  when  and  the  name  and  place  of  business  or* 
the  person  or  firm  to  whom  such  spirits  are  to  be  sent,  the  quantity 
and  kind  or  quantity  of  such  spirits,  the  number  of  gallons  and  frac- 
tions of  a  gallon  at  proof;  and,  if  in  the  original  packages  in  which 
they  were  received,  the  name  of  the  distiller  and  the  serial  number 
of  the  package.  Every  such  book  shall  be  at  all  times  kept  in  some 
public  or  open  place  on  the  premises  of  such  rectifier  or  wholesale 
dealer  for  inspection,  and  any  revenue  officer  may  examine  it  and 
take  an  abstract  therefrom;  and  when  it  has  been  filled  up  as  afore- 
said, it  shall  be  preserved  by  such  rectifier  or  wholesale  liquor  dealer 
for  a  period  not  less  than  two  years;  and  during  such  time  it  shall 
be  produced  by  him  to  every  revenue  officer  demanding  it.  And  when- 
ever any  rectifier  or  wholesale  liquor  dealer  refuses  or  neglects  to 
provide  such  book,  or  to  make  entries  therein  as  aforesaid,  or  cancels, 
alters,  obliterates,  or  destroys  any  part  of  such  book,  or  any  entry 
[therein]  [therein],  or  makes  such  false  entry  therein,  or  hinders  or 
obstructs  such  revenue  officer  from  examining  such  book,  or  making 


580  Federal  Criminal  Law  Procedure. 

any  entry  therein,  or  taking  any  abstract  therefrom;  or  whenever 
such  book  is  not  preserved  or  is  not  produced  by  any  rectifier  or 
wholesale  liquor  dealer  as  hereinbefore  directed,  he  shall  pay  a 
penalty  of  one  hundred  dollars,  and  shall  [on  conviction]  be  fined  not 
less  than  one  hundred  dollars  nor  more  than  five  thousand  dollars, 
and  imprisoned  not  less  than  three  months  nor  more  than  three 
years." 

In  the  case  of  Williams  vs.  United  States,  158  Federal, 
30,  the  Circuit  Court  of  Appeals  for  the  Eighth  Circuit 
held  that  an  indictment  under  this  section  need  not  set 
out  the  quantity  of  spirits  which  were  sent  out  without 
being  recorded  in  the  book  provided  for  in  the  statute, 
because  the  quantity  sent  out  was  not  the  essential  ele- 
ment, and,  therefore,  an  indictment  charging  that  the 
defendant,  a  wholesale  liquor  dealer,  sent  out  of  his 
stock  two  casks  of  distilled  spirits,  without  making  any 
required  entries,  was  not  fatally  defective  in  failing  to 
specify  the  quantity  shipped.  Neither  need  the  indict- 
ment specify  the  name  of  the  consignee  or  the  place 
where  the  casks  were  sent. 

In  the  cases  of  United  States  vs.  Amann,  24  Federal 
Case  No.  14438,  a  quantity  of  distilled  spirits,  3  Ben., 
552,  it  was  determined  in  substance,  that  if  it  was  a  mere 
accidental  omission  to  enter  in  the  record,  the  defendant 
should  not  be  convicted,  but  that  the  defendants  were 
responsible  for  the  action  of  their  clerks  and  bookkeep- 
ers, and  that  they  were  bound  to  see  that  their  duties 
with  reference  to  these  entries  was  fully  and  properly 
performed;  and  if,  through  the  neglect  or  carelessness 
of  the  employee,  it  was  not  performed,  the  employer 
was  responsible.  See  also  United  States  vs.  1412  Gallons 
of  Spirits,  10  Blatchf.,  428. 

§  367.  Stamps  and  Brands  to  be  Effaced  from  Empty 
Casks. — Section  3324  of  the  Revised  Statutes  provides 
as  follows: 

"Sec.  3324.  Every  person  who  empties  or  draws  off,  or  causes  to 
be  emptied  or  drawn  off,  any  distilled  spirits  from  a  cask  or  package 
bearing  any  mark,  brand,  or  stamp  required  by  law,  shall  at  the 
time  of  emptying  such  cask  or  package,  efface  and  obliterate  said 
mark,  stamp,  or  brand.  Every  such  cask  or  package  from  which 
said  mark,  brand,  or  stamp  is  not  effaced  and  obliterated,  as  herein 
required,  shall  be  forfeited  to  the  United   States,  and  may  be  seized 


Internal  Revenue.  581 

by  any  officer  of  internal  revenue  wherever  found.  And  every  rail- 
road company  or  other  transportation  company,  or  person  who  re- 
ceives or  transports,  or  has  in  possession  with  intent  to  transport,  or 
with  intent  to  cause  or  procure  to  be  transported,  any  such  empty 
cask  or  package,  or  any  part  thereof,  having  thereon  any  brand,  mark, 
or  stamp,  required  by  law  to  be  placed  on  any  cask  or  package,  or 
any  part  thereof,  so  received  or  transported,  or  had  in  possession 
with  the  intent  aforesaid;  and  every  boat,  railroad  car,  cart,  dray, 
wagon,  or  other  vehicle,  and  all  horses  or  other  animals  used  in 
carrying  or  transporting  the  same,  shall  be  forfeited  to  the  United 
States.  Every  person  who  fails  to  efface  and  obliterate  said  mark, 
stamp,  or  brand,  at  the  time  of  emptying  such  cask  or  package,  or 
who  receives  any  such  cask  or  package,  or  any  part  thereof,  with  the 
intent  aforesaid,  or  who  transports  the  same,  or  knowingly  aids  or 
assists  therein,  or  who  removes  any  stamp  provided  by  law  from  any 
cask  or  package  containing,  or  which  had  contained,  distilled  spirits, 
without  defacing  and  destroying  the  same  at  the  time  of  such  removal, 
or  who  aids  or  assists  therein,  or  who  has  in  his  possession  any  such 
stamp  so  removed  as  aforesaid,  or  has  in  his  possession  any  cancelled 
stamp,  or  any  stamp  which  has  been  used,  or  which  purports  to  have 
been  used,  upon  any  package  of  distilled  spirits,  shall  be  deemed 
guilty  of  a  felony,  and  shall  be  fined  not  less  than  five  hundred  dol- 
lars nor  more  than  ten  thousand  dollars,  and  imprisoned  not  less 
than  one  year  nor  more  than  five  years." 


There  are  no  words  expressing  intention  with  refer- 
ence to  this  offense  in  this  section,  and  under  the  author- 
ity of  United  States  vs.  Gallant,  177  Federal,  281,  an 
inadvertent  and  negligent  omission  to  do  the  things 
demanded  by  the  section  is  an  offense. 

§  368.  Re-use  of  Bottles,  Etc.,  Without  Removing 
and  Destroying  Stamps. — The  Act  of  March  3,  1897, 
29  Statute  at  Large,  627,  Section  6,  provides  as  follows: 

"Sec.  6.  That  any  person  who  shall  re-use  any  stamp  provided 
under  this  Act  after  the  same  shall  have  been  once  affixed  to  a  bottle 
as  provided  herein,  or  who  shall  re-use  a  bottle  for  the  purpose  of 
containing  distilled  spirits  which  has  once  been  filled  and  stamped 
under  the  provisions  of  this  Act  without  removing  and  destroying  the 
stamp  so  previously  affixed  to  such  bottle,  or  who  shall,  contrary  to 
the  provisions  of  this  Act  or  the  regulations  issued  thereunder  re- 
move or  cause  to  be  removed  from  any  bonded  warehouse  any  dis- 
tilled spirits  inspected  or  bottled  under  the  provisions  of  this  Act,  or 
who  shall  bottle  or  case  any  spirits  in  violation  of  this  Act,  or  of  any 
regulation  issued  thereunder,  or  who  shall,  during  the  transportation 
and  before  the  exportation  of  any  such  spirits,  open  or  cause  to  be 
opened,  any  case  or  bottle  containing  such  spirits,  or  who  shall  wil- 
fully remove,  change  or  deface  any  stamp,  brand,  label,  or  seal  affixed 


582  Federal  Criminal  Law  Procedure. 

to  any  such  case  or  to  any  bottle  contained  therein,  shall  for  each 
such  offense  be  fined  not  less  than  one  hundred  nor  more  than  one 
thousand  dollars,  and  be  imprisoned  not  more  than  two  years,  in  the 
discretion  of  the  court,  and  such  spirits  shall  be  forfeited  to  the 
United   States." 

In  United  States  vs.  Guthrie,  171  Federal  528,  the  fol- 
lowing points  with  reference  to  the  above  statute  were 
determined: 

First.  The  offense  is  complete  if  the  bottle  is  re-used 
without  destroying  the  stamps,  and  does  not  depend  on 
its  being  done  knowingly  and  wilfully. 

Second.  The  employer  is  guilty  if  the  act  is  perform- 
ed by  his  bartender  or  agent  acting  within  the  scope  of 
his  employment. 

§  368  a.  Must  Be  Evidence  of  Refilling. — A  convic- 
tion cannot  be  had  under  Section  6  without  some  evi- 
dence of  refilling  or  of  procuring  such  refilling.  Duff 
vs.  U.  S.,  185  Federal,  101. 

§  369.  Removing  any  Liquors  or  Wines  Under  any 
Other  than  Trade  Names;  Penalty. — Section  3449  of  the 
Revised  Statutes  reads  as  follows: 

"Sec.  3449.  Whenever  any  person  ships,  transports,  or  removes 
any  spirituous  or  fermented  liquors  or  wines,  under  any  other  than 
the  proper  name  or  brand  known  to  the  trade  as  designating  the  kind 
and  quality  of  the  contents  of  the  casks  or  packages  containing  the 
same,  or  causes  such  act  to  be  done,  he  shall  forfeit  said  liquors  or 
wines,  and  casks  or  packages,  and  be  subject  to  pay  a  fine  of  five 
hundred    dollars." 

In  United  States  vs.  Twenty  Casks,  etc.,  133  Federal, 
910,  the  Court  held  that  this  section  did  not  apply  to  a 
cask  shipped  without  a  label,  nor  does  it  apply  when  the 
cask  was  labeled,  "Glass:  with  care,"  etc.  In  United 
States  vs.  Liquor  Dealers'  Supply  Company,  156  Federal, 
219,  the  Court  held  that  spirituous  liquors  under  this 
section  contained  in  bottles  and  packed  in  barrels  and 

shipped,    the    barrels    being   marked    " "    is    a 

violation  of  this  section,  and  also  that  prosecutions 
under  this  section  contained  no  questions  of  fraud  or 
fraudulent  intent.  This  case  was  a  case  of  the  indict- 
ment of  a  corporation  for  a  violation   of  this  section. 


Internal  Revenue.  583 

See  also  United  States  vs.  Sandefulir,  145  Federal,  page 
849. 

This  statute  lias  been  held  not  to  apply  to  private  per-  ' 
sons,  but  only  to  distillers  and  dealers. 

Sec.  369  a.    Removal,  etc.,  of  Liquor  Continued. 

Section  3296,  R.  S.  U.  S.  concerned  with  the  removal 
of  liquors  was  repealed  by  the  Volstead  Act,  Reed  vs. 
Thurmond,  269  F.  252. 

§  370.  Oleomargarine.— The  Act  of  August  2,  1886, 
24  Statute  at  Large,  209,  is  what  is  known  as  the  Oleo- 
margarine Act,  and  contains  a  definition  of  butter  and 
oleomargarine. 

Section  3  of  the  Act  provides  a  schedule  of  special 
taxes  upon  manufacturers  of  six  hundred  dollars,  whole- 
sale dealers  of  four  hundred  eighty  dollars,  and  retail 
dealers  of  forty-eight  dollars.  The  manufacturer  is  any 
person  who  manufactures  oleomargarine  for  sale,  and 
also  any  person  who  mixes  with  oleomargarine  any  arti- 
ficial coloration.  A  wholesale  dealer  is  any  person  who 
sells  or  offers  for  sale  oleomargarine  in  the  original 
manufacturer's  packages;  and  the  retailer  is  any  per- 
son who  sells  oleomargarine  in  quantities  of  less  than 
ten  pounds  at  one  time. 

Section  4  of  the  Act  provides  the  penalties  for  the 
carrying  on  of  the  business  without  the  payment  of  the 
tax;  that  is  if  the  manufacturer  carries  on  his  business 
without  the  payment  of  his  special  tax,  he  shall  be  fined 
not  less  than  one  thousand  and  not  more  than  five  thou- 
sand dollars;  the  person  who  carries  on  the  business  of 
a  wholesale  dealer  without  paying  the  special  tax,  be- 
sides being  liable  to  the  payment  of  the  tax,  shall  be 
fined  not  less  than  five  hundred,  nor  more  than  two 
thousand  dollars;  and  every  person  who  carries  on  the 
business  of  a  retail  dealer  without  paying  the  special 
tax,  shall,  besides  being  liable  for  the  tax,  be  fined  not 
less  than  fifty,  nor  more  than  five  hundred  dollars. 

Section  6  regulates  packing  and  marking  oleomarga- 
rine, and  provides  the  penalty,  and  reads  as  follows: 

"Sec.  6.  That  all  oleomargarine  shall  be  packed  by  the  manufactur- 
er thereof  in  firkins,  tubs,  or  other  wooden  packages  not  before  used 
for  that  purpose,  each  containing  not  less  than  ten  pounds,  and  mark- 


584  Federal  Criminal  Law  Procedure. 

ed,  stamped,  and  branded  as  the  Commissioner  of  Internal  Revenue, 
with  the  approval  of  the  Secretary  of  the  Treasury,  shall  prescribe; 
and  all  sales  made  by  manufacturers  of  oleomargarine,  and  wholesale 
dealers  in  oleomargarine  shall  be  in  original  stamped  packages. 
Retail  dealers  in  oleomargarine  must  sell  only  from  original  stamped 
packages,  in  quantities  not  exceeding  ten  pounds,  and  shall  pack  the 
oleomargarine  sold  by  them  in  suitable  wooden  or  paper  packages, 
which  shall  be  marked  and  branded  as  the  Commissioner  of  Internal 
Revenue,  with  the  approval  of  the  Secretary  of  the  Treasury,  shall 
prescribe.  Every  person  who  knowingly  sells  or  offers  for  sale,  or 
delivers  or  offers  to  deliver,  any  oleomargarine  in  any  other  form 
than  in  new  wooden  or  paper  packages  as  above  described,  or  who 
packs  in  any  package  any  oleomargarine  in  any  manner  contrary  to 
law,  or  who  falsely  brands  any  package  or  affixes  a  stamp  on  any  pack- 
age denoting  a  less  amount  of  tax  than  that  required  by  law,  shall 
be  fined  for  each  offense  not  more  than  one  thousand  dollars,  and  be 
imprisoned   not  more  than  two  years." 

Section  6,  above  quoted,  has  been  declared  to  be  Con- 
stitutional in  in  re  Kollock,  165  U.  S.,  536;  41  Law  Ed., 
813,  and  Dougherty  vs.  United  States,  108  Federal,  56, 
which  affirmed  U.  S.  vs.  Dougherty,  101  Federal,  439, 
upon  the  reasoning  that  the  Act  does  not  continue  a 
delegation  of  power  to  the  Commissioner  of  Internal 
Revenue  and  the  Secretary  of  the  Treasury  to  determine 
what  act  shall  be  criminal,  but  the  Act  itself  sufficiently 
defines  the  offense,  by  requiring  the  packages  to  be 
marked  and  branded,  and  the  punishment  therefor,  leav- 
ing the  mere  discretion  of  the  particular  marks,  stamps, 
and  brands  to  be  determined  by  the  officers  aforesaid. 
The  Supreme  Court,  in  the  Kollock  case,  said  that  the 
primary  object  of  oleomargarine  legislation  was  to  secure 
revenue  by  internal  taxation,  and  to  prevent  fraud  in  the 
collection  of  such  revenue. 

In  the  case  of  Hipper  vs.  United  States,  178  Federal, 
page  24,  the  Circuit  Court  of  Appeals  held  that  evidence 
secured  by  the  unlawful  issuance  of  a  search  warrant, 
which  was  itself  relevant  was  not  inadmissible  because 
obtained  by  such  illegal  search  and  seizure;  and  that 
same  case  held  that  in  order  to  constitute  the  offense 
of  neglect  or  refusal  to  destroy  the  stamp  from  the 
emptied  oleomargarine  package,  it  need  only  appear 
that  the  package  had  a  stamp  on  it  denoting  the  payment 


Internal  Revenue.  585 

of  the  tax;  that  it  was  emptied  of  its  contents;  that  it 
was  in  defendant's  possession  in  its  emptied  condition; 
and  that  he  wilfully  neglected  or  refused  to  destroy  the 
stamp  while  the  empty  package  was  in  his  possession. 

That  same  case  also  reasoned  that  the  Act  authorized 
three  classes  of  persons  to  conduct  the  business  of  manu- 
facturing and  selling  oleomargarine;  namely,  the  manu- 
facturer, the  wholesale  dealer,  and  the  retail  dealer;  and 
that  Section  6  declares  that  retail  dealers  must  sell  only 
from  original  stamped  packages,  in  quantities  not  ex- 
ceeding ten  pounds,  and  that  the  restriction  on  retail 
dealers  violates  no  Constitutional  right,  and  that  per- 
sons selling  oleomargarine  at  retail  in  original  packages 
in  quantities  greater  than  ten  pounds  at  any  one  time  are 
violators  of  the  law,  and  do  not  form  a  class  outside  of 
its  provisions. 

In  this  case,  the  Court  also  held  that  the  penalty  pro- 
vided in  Section  6  does  not  apply  to  that  part  of  the 
section  prohibiting  retail  dealers  from  selling  in  quanti- 
ties exceeding  ten  pounds,  such  offense  being  subject 
to  punishment  by  a  fine  of  a  thousand  dollars,  without 
imprisonment,  as  prescribed  by  Section  18  of  the  Act, 
which  reads  as  follows: 

"Sec.  18.  That  if  any  manufacturer  of  oleomargarine,  any  dealer 
therein,  or  any  importer  or  exporter  thereof  shall  knowingly  and  wil- 
fully omit,  neglect,  or  refuse  to  do,  or  cause  to  be  done,  any  of  the 
things  required  by  law  in  the  carrying  on  or  conducting  of  his  bus- 
iness, or  shall  do  anything  by  this  act  prohibited,  if  there  be  no 
specific  penalty  or  punishment  imposed  by  any  other  section  of  this 
act  for  the  neglecting,  omitting,  or  refusing  to  do,  or  for  the  doing  or 
causing  to  be  done,  the  thing  required  or  prohibited,  he  shall  pay  a 
penalty  of  one  thousand  dollars;  and  if  the  person  so  offending  be 
the  manufacturer  or  a  wholesale,  dealer  in  oleomargarine,  all  the 
oleomargarine  owned  by  him,  or  in  which  he  has  any  interest  as 
owner,  shall  be  forfeited  to  the  United  States." 

In  Dougherty  vs.  United  States,  108  Federal,  56,  the 
Court  of  Appeals  for  the  Third  Circuit,  in  passing  upon 
the  case  originating  under  Section  6  of  the  Act,  said 
that  the  section  first  requires  manufacturers  to  pack 
oleomargarine  in  new  wooden  or  paper  packages,  mark- 
ed, stamped,  and  branded  as  prescribed;  and  sales  by 


586  Federal  Criminal,  Law  Procedure. 

manufacturers  and  wholesale  dealers  are  also  required 
to  be  "in  original  stamped  packages."  Thereafter,  it 
provides  that  they  shall  pack  it  "in  suitable  wooden  or 
paper  packages,  marked  and  branded  as  prescribed." 
The  penal  clause  thereof  provides  that  every  person 
who  knowingly  sells  oleomargarine  otherwise  than  in 
new  wooden  or  paper  packages  as  above  described,  shall 
be  fined,  and  held  that  such  clause  applied  to  retail  deal- 
ers as  well  as  others. 

The  Court  also  passed  upon  the  form  of  an  indictment. 

A  new  indictment,  in  conformity  with  the  ruling  of 
the  Court  in  United  States  vs.  Lockwood,  164  Federal, 
772,  was  found,  and  a  conviction  resulted,  which  con- 
viction was  affirmed  in  Lockwood  vs.  United  States,  178 
Federal,  437,  wherein  the  Court  re-affirmed  the  Con- 
stitutionlity  of  the  Act.  In  the  Lockwood  case,  164 
Federal,  772,  it  was  held  that  when  the  indictment  was 
for  selling  in  packages  that  were  not  as  prescribed  by 
the  Commissioner  of  Internal  Eevenue,  the  particular 
in  which  such  packages  did  not  conform  therewith  should 
be  set  out  in  the  indictment.  The  regulations  of  the 
Commissioners  provide  that  retail  packages  must  have 
the  name  and  address  of  the  dealer  printed  or  branded' 
thereon;  likewise,  the  words  "pound"  and  "oleomarga- 
rine" in  letters  not  less  than  one  quarter  of  an  inch 
square,  so  as  to  be  plainly  visible  to  the  purchaser  at 
the  time  of  delivery  to  him,  and  the  color  of  the  ink 
must  be  in  the  strongest  contrast  to  the  color  of  the 
packages. 

In  Wesoky  vs.  United  States,  175  Federal,  333,  the 
Circuit  Court  of  Appeals  for  the  Third  Circuit  passed 
upon  certain  evidence  that  was  admitted,  and  holds 
the  rulings  of  the  trial  judge  not  erroneous,  in  an  oleo- 
margarine prosecution.  In  this  case  it  was  held,  follow- 
ing Graves  vs.  United  States,  105  U.  S.,  121,  37  Law 
Ed.,  1021,  that  the  wife  of  a  defendant  indicted  in  a 
Federal  Court,  is  not  a  competent  witness. 

In  United  States  vs.  Lamson,  173  Federal,  673,  the 
Court  held  that  the  Oleomargarine  Act,  which  provides 
that  wholesale  dealers  shall  keep  such  books  and  render 
such  returns  as  the  Internal  Revenue  Commissioner  may 


Internal  Eevenue.  587 

require,  did  not  limit  the  power  of  the  commissioner  to 
the  sole  making  of  regulations  requiring  the  returns;  but 
he  was  authorized  thereunder  to  adopt  regulations  re- 
quiring such  dealers  to  make  monthly  returns,  showing 
the  packages  and  pounds  received,  quantity  disposed 
of,  and  the  names  and  addresses  of  the  consignees,  and 
that  such  regulation  was  reasonable,  and  when  such 
names  were  fictitious  and  erroneous,  there  was  a  viola- 
tion of  the  regulation. 

In  United  States  vs.  Union  Supply  Company,  the  Su- 
preme Court  of  the  United  States,  in  an  opinion  ren- 
dered November  8,  1909,  held  that  a  corporation  was  a 
person,  within  the  meaning  of  Section  6  of  the  Act  of 
May  9,  1902,  32  Stat.  L.,  193,  which  required  wholesale 
dealers  in  oleomargarine  to  keep  certain  books  and  make 
certain  returns,  and  this  although  Section  5  of  the  same 
Act  applies  in  express  terms  to  corporations.  In  Ver- 
mont vs.  United  States,  174  Federal,  729,  the  Circuit 
Court  of  Appeals  for  the  Eighth  Circuit  held  that  the 
term  "any  person"  in  the  Act  of  1886,  as  amended  by 
the  Act  of  May  9,  1902,  is  not  limited  to  licensed  whole- 
sale or  retail  dealers,  but  is  comprehensive  enough  to 
embrace  all  persons,  whether  licensed  dealers  or  not. 
This  case  also  affirms  the  doctrine  heretofore  mentioned 
with  reference  to  elements  of  that  portion  of  the  Act 
relating  to  the  destruction  of  stamps. 

In  United  States  vs.  Joyce,  138  Federal,  455,  the  Court 
held  that  that  portion  of  the  Act  of  1886  relating  to  the 
payment  of  tax  by  wholesale  dealers,  might  be  prosecut- 
ed by  either  information  or  indictment.  A  form  of  in- 
dictment is  also  approved  in  that  case  for  wholesale 
dealers  who  do  not  pay  the  tax. 

In  United  States  vs.  Ford,  50  Federal,  467,  the  Court 
held  that  an  indictment  under  Section  6  for  neglect  to 
properly  mark  the  package  of  oleomargarine  should  set 
out  the  regulation  of  the  commissioner  covering  the 
marks  and  brands  in  substance. 

In  apparent  contradiction  of  Vermont  vs.  United 
States,  174  Federal,  cited  supra,  seems  to  be  the  case  of 
Morris  vs.  United  States,  168  Federal,  682.  In  the  Mor- 
ris case,  the  Circuit  Court  of  Appeals  for  the  Eighth 


588  Federal  Criminal  Law  Procedure. 

Circuit,  in  passing  upon  Section  6  of  the  Act  of  1886, 
and  referring  to  the  words  "every  person"  should  be  con- 
strued to  refer  solely  to  manufacturers  and  dealers  pre- 
viously therein  mentioned,  so  that  an  indictment  for 
violating  such  section  which  fails  to  charge  that  the 
accused  was  either  a  manufacturer  or  dealer  in  oleomar- 
garine would  state  no  offense.  The  safe  rule,  therefore, 
is  to  allege  that  the  defendant  is  either  a  manufacturer 
or  a  wholesale  or  retail  dealer,  and  that  the  facts  of 
each  prosecution  will  substantiate  the  allegation;  other- 
wise, there  should  be  no  prosecution. 

Prosecution  for  sale  and  delivery,  though  different  of- 
fenses, if  same  transaction,  may  be  under  different  counts 
in  same  indictment,  Goll  vs.  U.  S.,  166  F.,  419. 

In  U.  S.  vs.  Eaton,  144  U.  S.,  688,  36  Law  Ed.,  591, 
Section  18  of  Act  requiring  certain  reports  and  books 
by  wholesale  dealers  was  held  inoperative. 

§  370  a.  Oleomargarine — Indictment. — Enders  vs.  U. 
S.,  1887  Federal,  754;  May  vs.  U.  S.,  199  Federal,  42; 
Hart  vs.  U.  S.,  183  Federal,  368. 

Sec.  370  b.     Artificial  Coloring  of  Butter. 

For  decisions  with  reference  to  this  violation  see  Til- 
lingast  vs.  Richards,  233  F.  7 JO;  U.  S.  vs.  Or.  233  F.  717. 


CHAPTER  XVIII. 

.NATIONAL  BANKS. 

§  371.     General   Provisions. 
371a.  Federal    Reserve    Bank. 
371b.  Aiding  and  Abetting. 

372.  Falsely   Certifying   Checks. 

373.  Wilfully. 

374.  Acting  by   Others. 

374a.  Acting  by  Another  Continued. 

374b.  Heinze   Case. 

375.  Embezzlement,     Abstraction,     Misapplication,     False     Entries, 

Etc. — Penalty. 
375a.  Misapplication  and  Other  Cases. 
375aa.     New  sec.  5209. 
375b.  False  Entries,  Mistakenly  Made. 
375bb.  Decisions  Under  sec.  5209. 
37C.     Abstraction. 

377.  Misapplication. 

377a.  Cases  of  Misapplication  and   Indictment. 
377b.  Indictment   Duplicitous.     When. 

378.  False   Entries. 

378a.  False  Entries  and  False  Reports  Continued. 
378b.  Admission    of    Books. 

379.  Other  Cases. 

379a.  Federal  Reserve  Act — Decisions  and  Acts. 

§  371.  Any  number  of  persons  not  less  than  five  may 
form  an  association  for  the  purpose  of  conducting  a 
national  bank.  The  Articles  of  Association  and  organ- 
ization certificate  should  state  the  name  assumed,  the 
place  where  operations  are  to  be  carried  on,  the  amount 
of  capital  stock,  and  the  number  of  shares  thereof,  the 
names  and  residences  of  the  share-holders,  and  the  num- 
ber of  shares  held  by  each.  When  these  dockets  are  filed 
with  the  Comptroller  of  the  Currency,  the  association 
becomes  a  body  corporate,  empowered  to  use  a  corporate 
seal,  have  a  life  for  twenty  years,  the  right  to  make 
contracts,  to  sue  and  to  be  sued,  elect  directors,  and  ap- 
point other  officers;  to  have  by-laws  which  are  not  in- 
consistent with  the  law  for  the  conduct  of  the  general 
business,  and  the  exercise  of  its  national  banking  privi- 
leges.    No  other  bank,  of  course,  is  authorized  to  use 

(589) 


590  Federal  Criminal  Law  Procedure. 

the  word  "national"  as  a  portion  of  its  title.  An  as- 
sociation may  exist  with  or  without  power  to  use  circula- 
tion. To  obtain  circulation  notes,  an  association  must 
deposit  with  the  Comptroller  of  the  United  States  bonds 
as  security  for  the  redemption  of  such  notes  as  it  may 
issue,  whereby,  within  limits,  notes  of  various  denomina- 
tions may  be  furnished  by  the  Comptroller.  The  States 
can  exercise  only  such  control  over  national  banks  as 
Congress  permits,  Farmers'  National  Bank  vs.  Deering, 
91  U.  S.,  33. 

The  sections  in  the  Revised  Statutes  relating  to  the 
organization  and  powers,  etc.,  of  national  banks  are  from 
5133  to  5156,  inclusive.  The  sections  in  the  Revised 
Statutes  relating  to  the  obtaining  and  issuing  of  circulat- 
ing notes  are  from  5757  to  5189,  inclusive.  The  sections 
relating  to  the  regulation  of  the  banking  business  are 
from  5190  to  5219,  inclusive.  The  sections  relating  to 
dissolution  and  receivership  are  from  5220  to  5243,  in- 
clusive. 

§  371  a.  Federal  Reserve  Bank.— By  the  Act  of  De- 
cember 23,  1913,  page  260,  1914  Supp.  Fed.  Stats.  Ann. 
Federal  reserve  banks  were  established  in  as  many  dis- 
tricts as  the  Federal  reserve  board  might  consider  neces- 
sary, in  accordance  with  which  the  Board  established 
eleven  such  banks.  This  legislation  contained  no  pro- 
visions which  modify  the  scope  or  vitality  of  Section 
5209  which  has  stood  so  long  as  the  legal  watchdog  over 
the  integrity  of  the  national  bank  system.  Later,  or  to 
wit,  on  August  15,  1914,  the  Act  was  amended  as  shown 
at  Section  9801  Federal  Stats.  Compiled.  Such  amend- 
ment dealt  largely  with  the  matter  of  percentums  of  de- 
posit to  remain  in  the  vaults  of  the  national  banks  and 
the  authorization  of  the  Federal  reserve  privilege  to  the 
State  bank.  Section  22  of  the  parent  Act  created  a 
new  misdemeanor  by  declaring  that  no  bank  nor  any 
officer,  director  or  employee  thereof  shall  make  any  loan 
or  grant  any  gratuity  to  any  bank  examiner,  the  penalty 
for  so  doing  being  imprisonment  not  to  exceed  oe  year  or 
a  fine  of  not  more  than  $5000  or  both,  and  may  be  fined 
a  further  sum  equal  to  the  amount  of  money  so  loaned 
or  gratuity  so  given.    The  section  also  provides  for  the 


National  Banks.  591 

punishment  of  the  bank  examiner  who  accepts  any  such 
favor,  by  the  same  penalty. 

The  same  section  also  declares  that  any  officer,  direct- 
or or  employee  of  a  member  bank  shall  not  receive  any 
compensation  or  gratuity  whatsoever  in  any  way  in  ad- 
dition to  his  regular  salary  and  that  no  examiner  shall 
disclose  the  names  of  borrowers  or  the  collateral  for  loans 
to  other  than  the  proper  officers  without  first  obtaining 
written  permission  from  the  Comptroller  of  the  Treas- 
ury, unless  ordered  to  do  so  by  competent  civil  jurisdic- 
tion, all  of  which  acts  are  punished  by  a  fine  not  exceed- 
ing $5000  or  by  imprisonment  not  exceeding  one  year, 
or  both.    See  also  Sec.  375aa  for  new  5209.     . 

§  371  b.  Aiding  and  Abetting. — The  last  paragraph 
of  Section  5209  provides  for  the  punishment  of  such 
persons  as  aid  or  abet  any  officer  or  clerk  or  agent  in 
the  commission  of  any  of  the  violations  of  that  section, 
provided  such  aiding  or  abetting  is  with  the  same  intent 
that  the  principal  must  have  before  he  can  be  guilty 
thereunder,  to  wit,  the  intent  to  injure  or  defraud  the 
persons  or  bodies  therein  enumerated,  or  to  deceive  the 
persons  therein  enumerated.     See  Section  375. 

For  indictments  and  illustrations  of  prosecutions  un- 
der this  paragraph  of  the  section,  see  Hillegass  vs.  U.  S., 
183  Federal,  200;  Prettyman  vs.  U.  S.,  180  Federal,  30; 
Keliher  vs.  U.  S.,  193  Federal,  8,  in  which  it  was  decided 
that  aiding  and  abetting  may  be  done  by  an  officer  of  the 
bank  as  well  as  by  an  outsider.  To  the  same  effect  is 
the  case  of  Kettenbach  vs.  U.  S.,  202  Federal,  377. 

§  372.  Falsely  Certifying  Checks.— Section  5208  of 
the  Revised  Statutes  of  1878,  which  reads  as  follows: 

"Sec.  5208.  It  shall  be  unlawful  for  any  officer,  clerk,  or  agent  of 
any  national  banking  association  to  certify  any  check  drawn  upon 
the  association  unless  the  person  or  company  drawing  the  check  has 
on  deposit  with  the  association,  at  the  time  such  check  is  certified, 
an  amount  of  money  equal  to  the  amount  specified  in  such  check. 
Any  check  so  certified  by  duly  authorized  officers  shall  be  a  good  and 
valid  obligation  against  the  association;  but  the  act  of  any  officer, 
clerk,  or  agent  of  any  association,  in  violation  of  this  section,  shall 
subject  such  bank  to  the  liabilities  and  proceedings  on  the  part  of  the 
comptroller  as  provided  for  in  Section  fifty-two  hundred  and  thirty- 
four." 


592  Federal  Criminal  Law  Procedure. 

relates  to  the  penalty  for  falsely  certifying  checks.  The 
penalties  of  the  section,  it  will  be  noted,  are  both  against 
the  individual  and  against  the  association.  The  comp- 
troller has  the  authority  to  place  the  association  whose 
officer  is  guilty  of  a  violation  of  this  section,  in  the  hands 
of  a  receiver,  as  provided  in  Section  5234. 

This  section  includes  four  criminal  offenses:  first,  the 
wilful  certification  of  checks  drawn  upon  the  association 
by  any  person  or  company,  unless  such  person  or  com- 
pany has,  at  the  time  such  check  is  certified,  on  deposit 
with  the  association,  an  amount  of  money  equal  to  the 
amount  specified  in  such  check;  second,  the  resorting 
to  any  devise,  in  order  to  evade  the  provisions  of  the 
of  the  section;  third,  the  receipt  of  any  fictitious  obli- 
gation, directly  or  collaterally,  in  order  to  evade  the 
provisions  of  the  section;  and  fourth,  the  certifying  of 
checks  before  the  amount  shall  have  been  regularly  en- 
tered to  the  credit  of  the  dealer  upon  the  books  of  the 
association. 

Anderson's  Dictionary  of  Law,  under  the  head  of  the 
words  "Certified  Check,"  says  it  "implies  that  there 
are  funds  in  the  bank  with  which  to  pay.  it;  that  the 
same  are  set  apart  for  its  satisfaction;  and  that  they  will 
be  so  applied  when  the  check  is  presented  for  payment. ' ' 

The  act  of  certifying  is  equivalent  to  an  acceptance  of 
the  check.  The  object  is  to  enable  the  holder  to  use 
the  check  as  money.  The  bank  charges  the  check  to  the 
account  of  the  drawer;  credits  it  in  a  certified  check 
account;  and  when  paid,  debits  that  account  with  the 
amount.  The  bank  thus  becomes  the  debtor  of  the  hold- 
er, Merchants'  Bank  vs.  The  State  Bank,  11  Wallace, 
647;  Espy  vs  Bank  of  Cincinnati,  18  Wallace,  619;  Bank 
vs.  Whitman,  94  IT.  S.,  343;  same  case,  100  U.  S.,  689; 
Bank  of  British  North  America,  91  N.  Y.,  110.  It  will 
be  borne  in  mind  that  the  statute  relates  alone  to 
"  check. ':  Draft,  or  letter,  or  telegram,  or  any  other 
certificate  that  is  not  included  in  the  technical  and  legal 
term  "  check, ':  is  not  included  within  the  statute. 

In  Potter  vs.  United  States,  155  U.  S.,  444;  39  Law  Ed., 
216,  the  Supreme  Court  held  that  the  word  "certified," 
as  commonly  understood,  implies  that  the  check  upon 


National  Banks.  593 

which  the  words  of  certification  have  been  written  has 
passed  from  the  custody  of  the  bank  into  the  hands  of 
some  other  party;  and  when  the  charge  is,  that  the  de- 
fendant "did  unlawfully,  knowingly," and  wilfull}7  certify 
a  certain  check,"  the  import  of  that  accusation  is  not 
simply  that  he  wrote  certain  words  upon  the  face  of  the 
check,  but  that  he  did  it  in  such  a  manner  as  to  create 
an  obligation  of  the  bank,  in  such  a  way  as  to  make  an 
instrument  which  can  properly  be  called  a  certified 
check. 

Sec.  372  a.     Falsely  Certified  Checks,  Continued. 

Section  5208  has  been  amended  to  read  as  follows : — 

(R.  S.  *5208,  as  amended,  Act  Sept.  26,  1918,  c— ,  *7.) 
Falsely  certifying  checks;  penalty;  punishment. 

It  shall  be  unlawful  for  any  officer,  director,  agent,  or 
employee  of  any  Federal  reserve  bank,  or  of  any  member 
bank  as  defined  in  the  Act  of  December  twenty-third, 
nineteen  hundred  and  thirteen,  known  as  the  Federal 
reserve  Act,  to  certify  any  check  drawn  upon  such  Fed- 
eral reserve  bank  or  member  bank  unless  the  person, 
firm,  or  corporation  drawing  the  check  has  on  deposit 
with  such  Federal  reserve  bank  or  member  bank,  at  the 
times  such  check  is  certified,  an  amount  of  money  not 
less  than  the  amount  specified  in  such  check.  Any  check 
so  certified  by  a  duly  authorized  officer,  director,  agent, 
or  employee  shall  be  a  good  and  valid  obligation  against 
such  Federal  reserve  bank  or  member  bank;  but  the  act 
of  any  officer,  director,  agent,  or  employee  of  any  such 
Federal  reserve  bank  or  member  bank  in  violation  of  this 
section  shall,  in  the  discretion  of  the  Federal  Reserve 
Board,  subject  such  Federal  reserve  bank  to  the  penalties 
imposed  by  section  eleven,  subsection  (h),  of  the  Federal 
reserve  Act,  and  shall  subject  such  member  bank  if  a 
national  bank  to  the  liabilities  and  proceedings  on  the 
part  of  the  Comptroller  of  the  Currency  provided  for  in 
section  fifty-two  hundred  and  thirty-four,  Revised  Stat- 
utes, and  shall,  in  the  discretion  of  the.  Federal  Reserve 
Board,  subject  any  other  member  bank  to  the  penalties 
imposed  by  section  nine  of  said  Federal  reserve  Act  for 
the  violation  of  any  of  the  provisions  of  said  Act.  Any 
officer,  director,  agent,  or  employee  of  any  Federal  reserve 

38 


59-4  Federal  Criminal  Law  Procedure. 

bank  or  member  bank  who  shall  wilfully  violate  the 
provisions  of  this  section,  or  who  shall  resort  to  any 
devise,  or  receive  any  fictitious  obligation,  directly  or 
collaterally,  in  order  to  evade  the  provisions  thereof,  or 
who  shall  certify  a  check  before  the  amount  thereof  shall 
have  been  regularly  entered  to  the  credit  of  the  drawer 
upon  the  books  of  the  bank,  shall  be  deemed  guilty  of 
a  misdemeanor  and  shall,  on  conviction  thereof  in  any 
district  court  of  the  United  States,  be  fined  not  more 
than  $5,000,  or  shall  be  imprisoned  for  not  more  than 
five  years,  or  both,  in  the  discretion  of  the  court. 

§  373.  Wilfully.— The  use  of  the  word  "wilfully"  in 
the  statute  implies  on  the  part  of  the  officer  who  commits 
the  offense,  knowledge  and  purpose  to  do  wrong.  Some- 
thing more  is  required  than  the  act  of  certification  made 
in  excess  of  the  actual  deposit  but  in  ignorance  of  that 
fact,  but  without  a  purpose  to  evade  or  disobey  the  man- 
dates of  the  law.     In  Potter  vs.   United   States,   cited 

supre,  this  language  is  used: 

i 

"The  significance  of  the  word  "wilfully"  in  criminal  statutes  has 
been  considered  by  this  Court.  In  Felton  vs.  United  States,  96  U.  S., 
699,  24  Law  Ed.,  875,  it  was  said:  'Doing  or  omitting  to  do  a  thing 
knowingly  and  wilfully  implies  not  only  knowledge  of  the  thing;  but 
a  determination,  with  a  bad  intent,  to  do  it.  The  word  'wilful,'  says 
Chief  Justice  Shaw,  in  the  ordinary  sense  in  which  it  is  used  in 
statutes,  means  not  merely  voluntary,  but  with  a  bad  purpose,  Com. 
vs.  Kneeland,  20  Pick,  220.  It  is  frequently  understood,  says  Bishop, 
as  signifying  an  evil  intent  without  justifiable  excuse,  I.  Bishop,  as 
signifying  an  evil  intent  and  later,  in  the  case  of  Evans  vs.  United 
States,  153  U.  S.,  584,  38  Law  Ed.,  830,  there  was  this  reference  to 
the  words  'wilfully  misapplied':  'In  fact  the  gravamen  of  the  offense 
consists  in  the  evil  design  with  which  the  misapplication  is  made, 
and   a  count  which  should   omit  the   words  "wilfully,   etc.,   and   with 

intent  to  defraud,"    would  be  clearly  bad.' As  wilful  wrong 

is  of  the  essence  of  the  accusation,  testimony  bearing  directly  on 
the  question  of  wilfulness  is  of  vital  importance,  and  error  in  re- 
jecting it  cannot  be  regarded  otherwise  than  as  material  and  mani- 
festly prejudicial." 

The  original  Potter  case,  which  was  treated  in  the  writ 
of  error  above,  will  be  found  in  56  Federal,  page  93. 
The  Supreme  Court,  in  Spurr  vs.  United  States,  174  U. 
S.,  728,  held  that  the  trial  judge,  in  answering  a  question 


National  Banks.  595 

of  the  jury  in  a  prosecution,  under  this  section,  when 
tliev  came  in  after  consulation,  and  asked  for  the  law 
ing  of  ''wilful  violation,"  when  he  was  requested  so  to 
as  to  certification  when  on  money  appeared  to  the  credit 
of  the  drawer,  which  answer  failed  to  explain  the  mean- 
do  bv  the  defendant's  counsel,  was  reversible  error. 

United  States  vs.  Heinze,  161  Federal,  425,  holds  that 
Section  5208  creates  no  criminal  offense  until  read  in  con- 
nection with  Section  13  of  the  Act  of  July  12,  1882,  22 
St.  L.,  166,  Section  13  of  said  Act  fixing  the  punishment. 
Judge  Hough,  in  the  Heinze  case,  said  that  Courts  were 
bound  to  take  judicial  notice  of  the  meaning  of  the  word 
"certified"  as  applied  to  bank  checks,  and  that  such 
meaning  was  that  certain  words  have  been  written  or 
printed  on  a  check,  and  that  the  check  has  passed  from 
the  custody  of  the  bank  into  the  hands  of  some  other 
party,  and  that  thereby  the  person  certifying  created  an 
obligation  of  the  bank.  That  case  also  held  that  an  in- 
dictment was  not  fatally  defective  for  failure  to  set  out 
totidem  verbis  the  written  certifications  under  the  rule 
that  in  an  indictment  in  Federal  Courts  it  is  not  neces- 
sary to  allege  the  tenor  of  an  instrument,  unless  it  touches 
the  gist  of  the  crime,  such  rule  limiting,  in  the  Federal 
Courts,  the  setting  out  in  full  of  the  instrument  main- 
ly, if  not  wholly,  to  the  cases  of  forgery,  counterfeiting, 
and  sending  threatening  letters. 

Sec.  373  a.    Wilfully,  Continued. 

For  further  definitions  of  the  word  wilfully  and  know- 
ingly see  252  F.  213  and  Bentall  vs.  U.  S.,  262  F.  744. 

§  374.  Acting  by  Others. — In  the  Heinze  case,  the 
facts  as  alleged  in  the  indictment  were  that  the  defend- 
ant did  not  certify  in  the  sense  of  personally  signing  the 
certification  stamped  on  the  checks  in  question;  and  a 
motion  to  quash  was  made  upon  the  ground  that,  there- 
fore, he  personally  could  not  be  indicted  under  this  sec- 
tion. The  Court  answered  this  objection  by  stating  that, 
"The  whole  indictment  taken  together  shows  that  the 
first  fifteen  counts  must  fail  unless  the  prosecution  can 
prove  that  the  individuals  who  actually  executed  the 
certification  endorsed  were  but  physical  instruments 
of  the  defendant  in  doing  what  was  done;  and  that  an 


596  Federal  Criminal  Law  Procedure. 

indictment  will  lie  for  causing  or  procuring  a  coerced 
subordinate  to  do  the  forbidden  act,  is  distinctly  held  by 
Judge  Putnam  in  the  Potter  case." 

§  374  a.  Acting  by  Another  Continued. — The  mak- 
ing of  false  entries  in  the  book  of  a  national  bank  is 
equally  an  offense  whether  it  is  done  by  the  bank  officer 
charged,  or  whether  he  procures  it  to  be  done  through 
the  medium  of  other,  and  where  an  indictment  charged 
an  officer  with  making  false  entries,  in  that  he  caused 
and  procured  them  to  be  made,  proof  of  either  Of  such 
charges  was  sufficient  after  verdict  to  sustain  a  convic- 
tion, even  though  the  other  was  not  proved.  Richard- 
son vs.  U.  S.,  181  Federal,   1. 

§  374  b.  Heinze  Case.— In  Sections  373  and  374,  the 
Heinze  case  in  161  Federal,  425,  is  mentioned.  Indict- 
ment was  held  sufficient  by  the  Supreme  Court  of  the 
United  States,  and  161  Federal,  425,  reversed  in  U.  S. 
vs.  Heinze,  218  U.  S.  532,  and  the  Court  held  that  a  charge 
in  the  indictment  that  a  note  for  an  amount  was  receiv- 
ed for  discount  which  was  wholly  unsecured,  and  which 
sum  was  lost  to  the  bank,  amounts  to  a  direct  allegation 
that  the  loss  was  caused  by  the  discount, 

§  375.  Embezzlement,  Abstraction,  Misapplication, 
False  Entries,  Etc.,  Penalty. — By  long  odds,  the  most 
important  Federal  statute  for  the  preservation  of  the 
people's  property  and  the  integrity  of  the  national  bank- 
ing system,  is  Section  5209,  which  reads  as  follows: 


i  i 


Sec.  5209.  Every  president,'  director,  cashier,  teller,  clerk,  or 
agent  of  any  association,  who  embezzles,  abstracts,  "or  wilfully  mis- 
applies, any  of  the  moneys,  funds,  or  credits  of  the  association;  or 
who,  without  authority  from  the  directors,  issues  or  puts  in  circula- 
tion any  of  the  notes  of  the  association;  or  who,  without  such  au- 
thority, issues  or  puts  forth  any  certificate  of  deposit,  draws  any 
order  or  bill  of  exchange,  makes  any  acceptance,  assigns  any  note, 
bond,  draft,  bill  of  exchange,  mortgage,  judgment,  or  decree;  or  who 
makes  any  false  entry  in  any  book,  report,  or  statement  of  the  as- 
sociation, with  intent,  in  either  case,  to  injure  or  defraud  the  associa- 
tion or  any  other  company,  body  politic  or  corporate,  or  any  individual 
person,  or  to  deceive  any.  officer  of  the  association,  or  any  agent  ap- 
pointed to  examine  the  affairs  of  such  association;  and  every  per- 
son who  with  like  intent  aids  or  abets  any  officer,  clerk,  or  agent  in 
any  violation  of  this  section,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  shall  be  imprisoned  not  less  than  five  years  nor  more  than  ten." 


National  Banks.  597 

The  statute,  it  will  be  noted,  punishes  every  president 
director,  cashier,  teller,  clerk,  or  agent,  who  (1)  embez- 
zles, (2)  abstracts,  (3)  wilfully  misapplies,  any  of  the 
(1)  moneys,  (2)  funds,  or  (3)  credits,  of  the  association 
In  other  words,  as  stated  by  Terrell,  in  his  book  on  na- 
tional banking  at  page  13,  the  statute  covers  embezzle- 
ment by  the  persons  named,  of  any  of  the  money,  funds, 
or  credits  of  the  association,  provided  such  embezzle- 
ment be  with  the  intent  to  injure  or  defraud  (1)  the 
association,  (2)  any  other  company,  body  politic  or  cor- 
poriate,  or  (3)  any  individual  person.  The  word  "embez- 
zle, ' '  as  used  in  this  statute,  says  Terrell,  has  well  defined 
technical  meaning.  It  is  the  unlawful  conversion,  by 
an  officer  of  a  bank,  to  his  own  use,  of  the  moneys,  funds, 
or  credits  of  the  association  entrusted  to  him,  with  the 
intent  to  injure  or  defraud  the  bank,  United  States  vs. 
Youtzey,  91  Federal,  867.  It  involves  a  breach  of  trust 
or  duty  in  respect  of  the  moneys,  goods,  or  properties 
entrusted  to  the  party's  possession,  belonging  to  another, 
and  also  the  wrongful  appropriation  thereof  to  the 
party's  own  use.  Though  kin  to  theft  or  larceny 
embezzlement  is  a  separate  and  distinct  offense 
In  order  to  constitute  this  crime,  it  is  necessary  that  the 
property,  money  or  personal  effects  embezzled  should 
have  previously  come  lawfully  into  the  hands,  posses- 
sion, or  custody,  of  the  party  charged  with  such  offense 
and  that  while  so  entrusted  to  his  possession  and  custo- 
dy, and  held  for  the  use  and  benefit  of  the  real  owner, 
he  wrongfully  converts  the  same  to  his  own  use,  United 
States  vs.  Harper,  33  Federal,  474.  The  Supreme  Court, 
in  Moore  vs.  United  States,  160  U.  S.,  269,  defines  em- 
bezzlement to  be  "The  fraudulent  appropriation  of  prop- 
erty, by  a  person  to  whom  such  property  has  been  en- 
trusted, or  into  whose  hands  it  has  lawfully  come.  Such 
custody  need  not  be  actual,  manual  possession.  United 
States  vs.  Harper,  33   Federal,  475. 

In  United  States  vs.  Northway,  120  U.  S.,  336;  30  Law 
Ed.,  664,  the  Court  held  in  substance  that  the  wilful 
and  criminal  misapplication  of  the  funds  of  a  national 
bank,  as  defined  by  this  section,  may  be  made  by  an  offi- 
cer or  agent,  without  having  previously  received  them 


598  Federal  Criminal  Law  Procedure. 

into  his  manual  possession.  There  is  a  distinction  between 
said  offense  and  embezzlement.  In  the  former  it  is  unnec- 
essary to  charge  possession  in  the  indictment,'  while  in 
the  latter  a  charge  of  possession  is  required  in  describ- 
ing the  offense. 

§  375a.    Misapplication  and  Other  Cases. — Pearce  vs. 
U.  S.,  192  Federal,  561.     In  this  case  the  discounting  of 
notes  was  the  basis  of  the  offense.    Prettvman  vs.  U.  S., 
180  Federal,  30. 
Sec.  375.  a.  a.     Embezzlement,  etc.,  Continued. 

Sec.  5209  was  amended  by  the  Act  of  September  26, 
1918,  to  read  as  follows: — 

"Any  officer,  director,  agent,  or  employee  of  any  Federal  reserve 
bank,  or  of  any  member  bank  as  defined  in  the  Act  of  December 
twenty-third,  nineteen  hundred  and  thirteen,  known  as  the  Federal 
reserve  Act,  who  embezzles,  abstracts,  or  wilfully  misapplies  any 
of  the  moneys,  funds,  or  credits  of  such  Federal  reserve  bank  or 
member  bank,  or  who,  without  authority  from  the  directors  of  such 
Federal  reserve  bank  or  member  bank,  issues  or  puts  in  circulation 
any  of  the  notes  of  such  Federal  reserve  bank  or  member  bank,  or 
who,  without  such  authority,  issues  or  puts  forth  any  certificate  of 
deposit,  draws  any  order  or  bill  of  exchange,  makes  any  acceptance, 
assigns  any  note,  bond,  draft,  bill  of  exchange,  mortgage,  judgment, 
or  decree,  or  who  makes  any  false  entry  in  any  book,  report,  or 
statement  of  such  Federal  reserve  bank  or  member  bank,  with  in- 
tent in  any  case  to  injure  or  defraud  such  Federal  reserve  bank  or 
member  bank,  or  any  other  company,  body  politic  or  corporate,  or 
any  individual  person,  or  to  deceive  any  officer  of  such  Federal  re- 
serve bank  or  member  bank,  or  the  Comptroller  of  the  Currency,  or 
any  agent  or  examiner  appointed  to  examine  the  affairs  of  such 
Federal  reserve  bank  or  member  bank,  or  the  Federal  Reserve 
Board;  and  every  receiver  of  a  national  banking  association  who, 
with  like  intent  to  defraud  or  injure,  embezzles,  abstracts,  purloins, 
or  wilfully  misapplies  any  of  the  moneys,  funds,  or  assets  of  his 
trust,  and  every  person  who,  with  like  intent,  aids  or  abets  any  offi- 
cer, director,  agent,  employee,  or  receiver  in  any  violation  of  this 
section  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  convic- 
tion thereof  in  any  district  court  of  the  United  States  shall  be  fined 
not  more  than  $5,000  or  shall  be  imprisoned  for  not  more  than  five 
years,   or  both,   in   the  discretion  of  the  court. 

Any  Federal  reserve  agent,  or  any  agent  or  employee  of  such 
Federal  reserve  agent,  or  of  the  Federal  Reserve  Board,  who  em- 
bezzles, abstracts,  or  wilfully  misapplies  any  moneys,  funds,  or  se- 
curities intrusted  to  his  care,  or  without  complying  with  or  in  vio- 
lation of  the  provisions  of  the  Federal  reserve  Act,  issues  or  puts  in 
circulation    any    Federal    reserve    notes    shall    be   guilty   of    a    misde- 


National  Banks.  599 

meanor  and  upon  conviction  in  any  district  court  of  the  United 
States  shall  be  fined  not  more  than  $5,000  or  imprisoned  for  not 
more  than  five  years,  or  both,   in  the   discretion   of  the  court." 

§  375b.  False  Entries  Mistakenly  Made. — An  entry 
made  by  mistake  which  is  false  is  not  an  offense.  Graves 
vs.  U.  S.,  165  U.  S., ;  41  L.  ed.,  732. 

Sec.  375  b.  b.  Decisions  and  Suggestions  With  Ref- 
ference  to  Foregoing  Act. 

Liberty  bonds  are  "funds"  and  the  intention  to  re- 
turn funds  is  no  defense  to  the  charge  of  embezzlement, 
U.  S.  vs.  Jenks,  264  F.  697. 

A   cashier's   check   is   a   bill    of   exchange,    Hoos   vsA 
U.  S.,  232  F.  328. 

The  intent  to  defraud  is  essential  in  all  prosecutions 
under  this  statute,  U.  S.  vs.  Jenks,  258  F.  763. 

Jurisdiction  over  bank  offenses  is  exclusive  to  the 
United  States,  Easton  vs.  U.  S.  188  U.  S.  220,  47  Law 
Ed.  452. 

Under  the  new  statute  this  is  now  a  felony,  U.  S.  vs. 
Hoos,  232  F.  328. 

The  payment  of  a  note  out  of  the  funds  of  a  bank 
is  a  violation,  when,  Showalter  vs.  U.  S.,  260  F.  719. 

A  receiver  of  a  National  Bank  is  not  an  "agent",  U. 
S.  vs.  Weitzel,  U.  S.  Sup.  Ct.  April,  1918. 

Loans  on  wheat  bills  of  lading,  etc.,  may  support  a 
charge  of  misapplication,   Stout  vs.  U.   S.,   227  F.   799 

The  offense  is  to  be  determined  by  the  facts  at  the 
time  and  subsequent  payment  is  not  a  defense,  Matters 
vs.  U.  S.,  261  F.  826. 

For  a  case  wherein  the  evidence  was  held  insufficient 
to  sustain  a  conviction  for  abstraction  see  McCallum  vs. 
U.  S.,  247  F.  27. 

For  conspiracy  to  abstract  see  Oppenheim  vs.  U.  S., 
241  F.  625. 

Intent  in  prosecutions  under  this  statute  cannot  be 
ignored  nor  charged  against  by  the  court.  Cummins  vs. 
U.  S.,  232  F.  844. 

The  appropriation  of  a  special  deposit  is  an  offense, 
Sheridan  vs.  U.  S.,  236  F.  305. 

A  misapplication  evidence  furnished  by  a  reporter 
which  failed  to  show  an  overdraft  is  admissible,  Garanflo 
vs.  U.  S.,  246  F.  910. 


600  Federal  Criminal  Law  Procedure. 

► 

As  to  different  defendants  and  different  offenses  and 

questions  of  duplicity  see  U.  S.  vs. ;  Boone  vs.  U. 

S.,  257  F.  963;  Simpson  vs.  U.  S.,  229  F.  940. 

For  a  case  on  false  entries  an  intent  see  Galbreatli 
vs.  U.  S.,  257  F.  648. 

As  to  the  liability  of  a  bank  for  bonds  deposited 
with  the  cashier  see  First  vs.  Mercantile,  273  F.  119. 

§  376.  Abstraction. — The  president,  director,  cashier, 
teller,  clerk,  or  agent  of  any  national  banking  associa- 
tion who  abstracts  any  of  the  (1)  moneys,  (2)  funds,  or 
(3)  credits,  of  the  association,  with  the  intent  to  injure 
or  defraud  (1)  the  association,  (2)  any  other  company, 
body  politic  or  corporate,  or  (3)  any  individual  person, 
is  guilty  of  abstraction.  Abstraction  from  definitions 
taken  from  United  States  vs.  Eno,  56  Federal,  220,  and 
United  States  vs.  McKnight,  115  Federal,  972,  means  to 
take  or  withdraw  from;  so  that,  to  abstract  the  funds  of 
a  bank,  or  a  portion  of  them,  is  to  take  and  withdraw 
from  the  possession  and  control  of  the  bank  the  moneys 
and  funds  alleged  to  be  so  abstracted.  Such  abstrac- 
tion must  be,  of  course,  without  its  knowledge  and  con- 
sent, and  with  the  intent  to^Tnjure  or  defraud  it  or  some 
other  person  or  company.  The  Supreme  Court,  in  speak- 
ing of  the  word  "abstraction"  in  the  Northway  case,  120 
U.  S.,  says: 

"We  do  not  admit  the  proposition  that  the  offense  ,of  abstracting  the 
funds  of  the  bank  under  this  section  is  necessarily  equivalent  to 
the  offense  of  larceny.  The  offense  of  larceny  is  not  complete  without 
the  animus  furandi,  the  intent  to  deprive  the  owner  of  his  property; 
but  under  Section  5209,  an  officer  of  the  bank  may  be  guilty  of  ab- 
stracting the  funds  and  money  and  credits  of  the  bank  without  that, 
particular  intent.  The  statute  may  be  satisfied  with  an  intent  to 
injure  or  defraud  some  other  company  or  body  politic  or  corporate, 
or  individual  person,  than  the  banking  association,  whose  property 
is  abstracted,  but  merely  to  deceive  some  other  officer  of  the  associa- 
tion or  an  agent  appointed  to  examine  its  affairs,  This  intent  may 
exist  in  a  case  of  abstracting,  without  that  intent  which  is  necessary 
to  constitute  the  offense  of  stealing.  Previous  possession  is  not  neces- 
sary in  order  to  the  commission  of  this  offense.  United  States  vs. 
Harper,  33  Federal,  480.  In  United  States  vs.  Breese,  131  Federal, 
921,  abstraction  is  defined  as  the  act  of  one  who,  being  an  officer  of  a 
national  banking  association,  wrongfully  takes  or  withdraws  from 
it  any  of  its  moneys,  funds,  or  credits,   with   intent   to   injure   or   de- 


National  Banks.  601 

fraud  it,  or  some  other  person  or  company,  and  without  its  knowl- 
edge and  consent.  It  may  be  done  by  one  act,  or  by  a  succession  of 
acts.  It  may  be  done  under  color  of  loans,  discounts,  checks,  or  the 
like.     The  means  does  not  change  the  nature  of  the  act." 

§  377.  Misapplication. — Wilful  misapplication  is  the 
misapplying  by  any  president,  director,  cashier,  teller, 
clerk,  or  agent,  etc.,  of  (1)  moneys,  (2)  funds,  or  (3) 
credits  of  the  association,  with  the  intent  to  injure  or 
defraud  (1)  the  association,  (2)  any  other  company, 
body  politic  or  corporate,  or  (3)  any  individual  person, 
or_with  the  intent  to  deceive  (1)  any  officer  of  the  as- 
sociation, or  (2)  any  agent  appointed  to  examine  the 
affairs  of  the  association.  Misapplication,  as  defined  by 
the  Supreme  Court  in  the  Northway  case,  120  U.  S., 
may  be  comprehended  by  the  following  language: 

"In  order  to  misapply  the  funds  of  the  bank,  it  is  not  necessary 
that  the  officer  charged  should  be  in  actual  possession  of  them  by 
virtue  of  a  trust  committed  to  him.  He  may  abstract  them  from  the 
other  funds  of  the  bank  unlawfully,  and  afterwards  criminally  mis- 
apply them;  or,  by  virtue  of  his  official  relation  to  the  bank,  he  may 
have  such  control,  direction,  and  power  of  management  as  to  direct 
an  application  of  the  funds  in  such  a  manner  and  under  such  circum- 
stances as  to  constitute  the  offense  of  wilful  misapplication.  And 
when  it  is  charged,  as  in  the  counts  of  this  indictment,  that  he  did 
wilfully  misapply  certain  funds  belonging  to  the  association,  by  caus- 
ing them  to  be  paid  out  to  his  own  use  and  benefit  in  unauthorized 
and  unlawful  purchases,  without  the  knowledge  and  consent  of  the 
association,  and  with  the  intent  to  injure,  it,  it  necessarily  implies 
that  the  acts  charged  were  done  by  him  in  his  official  capacity,  and 
by  virtue  of  the  power,  control,  and  management  which  he  was  en- 
abled to  exert  by  virtue  of  his  official  relation.  This,  we  think,  com- 
pletes the  offense  intended  by  the  statute,  of  a  wilful  misapplication 
of   the    moneys   and    funds    of   a    national    banking   association." 

§  377a.  Cases  of  Misapplication  and  Indictment. — U. 
S.  vs.  Heinze,  183  Federal,  907;  U.  S.  vs.  Heinze,  218 
U.  S.,  542;  U.  S.  vs.  Norton,  188  Federal,  256.  The 
renewal  of  a  note  is  not  misapplication.  Adler  vs.  U. 
S.,  182  Federal,  464. 

§  377b.  Indictment  Duplicitous,  When. — Indictment 
Duplicitous  which  says  "injure  and  defraud,"  etc. 
Since  the  statute  uses  the  disjunctive  "or"  instead  of 
the  conjunctive  "and"  between  the  words  'njure,  de- 
fraud, deceive,  it  was  held  in  the  case   of  Norton  vs. 


602  Federal  Criminal  Law  Procedure. 

U.  S.,  18b  Federal,  256,  that  an  indictment  which  charg- 
ed that  the  defendant  did  the  acts  therein  complained  of 
with  the  intent  to  injure  or  defraud  and  deceive  was 
duplicitous  and  upon  the  question  being  properly  raised 
the  indictment  was  quashed.  The  defendant  was  reindict- 
ed in  deference  to  such  judgment  and  the  conviction  was 
affirmed  in  Norton  vs.  U.  S.,  205  Federal,  593. 

In  the  case  of  U.  S.  vs.  Corbett,  215  U.  S.,  233,  the 
opinion  shows  that  the  conjunctive  was  used  in  that  in- 
dictment and  while  the  Supreme  Court  holds  the  indict- 
ment good,  the  question  now  being  discussed  was  not 
before  the  Court  and  was  not  in  any  way  whatsoever 
mentioned.  It,  therefore,  remains  without  further 
authority  than  the  Norton  case,  and  Billingly  vs.  U.  S., 
178  Federal,  653.  It  does  seem,  however,  that  the  deci- 
sions in  the  Norton  and  Billingsly  cases  are  correct, 
because  manifestly  one  could  do  the  acts  enumerated  in 
the  statute  with  intention  to  either  injure  or  the  inten- 
tion to  defraud  or  with  the  intention  to  deceive  and  the 
three  words  are  not  in  any  sense  synonymous  and  it 
therefore  seems  that  the  doing  of  the  .acts  denounced 
by  the  statute,  with  the  three  separate  intents,  become  as 
many  separate  felonies,  no  more  than  one  of  which,  of 
course,  can  be  laid  in  the  same  count  of  the  indictment. 

§  378.  False  Entries. — Every  president,  director, 
cashier,  teller,  clerk,  or  agent  of  any  national  banking- 
association  who  makes  any  false  entry  in  (1)  any  book, 
(2)  any  report,  or  (3)  any  statement,  of  the  association, 
with  the  intent,  (1)  to  injure,  (2)  or  defraud,  (1)  the 
association,  (2)  or  any  company,  body  politic,  or  cor- 
porate, or  (3)  any  individual  person,  or  (4)  with  the 
intent  to  deceive  (1)  any  officer  of  the  association,  or  (2) 
any  agent  appointed  to  examine  the  affairs  of  such  as- 
sociation, is  guilty  of  the  offense  of  making  false  entries, 
within  the  meaning  of  the  statute. 

It  will  be  borne  in  mind  that  Section  5211  of  the  Ee- 
vised  Statutes  provides  for  the  making  of  five  reports  to 
to  Comptroller  of  the  Currency  of  the  condition  of  the 
affairs  of  the  association,  at  such  time  and  upon  such 
dates  as  the  Comptroller  may  demand,  and  it  is  of  these 
reports  that  the  statute,  in  speaking  of  false  entries  in 
reports,  relates. 


National  Banks.  603 

All  of  the  offenses  denounced  in  the  statute  rest  for 
their  complete  fulfillment  upon  the  "intent"  to  either 
injure  or  defraud  the  association,  or  any  other  company, 
body  politic  or  corporate,  or  any  individual  person,  or 
to  deceive  any  officer  of  the  association,  or  any  agent 
appointed  to  examine  the  affairs  of  such  association. 
This_mtent  is  an  essential  ingredient  of  the  indictment 
and  the  offense,  U.  S.  vs.  Britton,  170  U.  S.,  655;  United 
States  vs.  Voorhes,  9  Federal,  143;  McKnight  vs.  U.  S., 
Ill  Federal,  735.  The  cases  of  Agnew  vs.  United  States, 
165  U.  S.,  36;  United  States  vs.  Youtsey,  91  Federal,  864; 
United  States  vs.  Allis,  73  Federal,  165;  Peters  vs.  Unit- 
ed States,  94  Federal,  127;  United  States  vs.  Kenney, 
90  Federal,  257;  and  Evans  vs.  United  States,  153  U. 
S.,  584,  announce  no  new  doctrine  in  the  criminal  law 
when  they  hold,  in  substance,  that  such  intent  does  not 
necessarily  involve  malice  or  ill-will  toward  the  bank, 
for  the  law  presumes  that  a  person  intends  the  necessary 
and  natural  consequences  of  his  acts,  and  it  is  sufficient 
that  the  wrongful  or  fraudulent  act  will  necessarily  or 
naturally  injure  or  defraud  the  bank  as  set  forth  in  the 
statute. 

In  Flickenger  vs.  United  States,  150  Federal,  page  1, 
the  Circuit  Court  of  Appeals  for  the  Sixth  Circuit  adopt- 
ed this  view,  and  said: 

"There  could  be  no  proper  presumption  that  the  directors,  in  the 
ordinary  course  of  business,  would  consent  to  the  discount,  by  the 
president,  of  worthless  and  fictitious  paper,  with  intent  to  injure  and 
defraud  the  bank,  and,  therefore,  no  necessity  to  insert  in  the  in- 
dictment an  averment  to  negative  such  authority." 

Any  entry  which  is  intentionally  made  to  represent 
what  is  not  true,  or  does  not  exist,  is  a  false  entry,  Agnew 
vs.  United  States,  165  U.  S.,  36.  An  entry  of  a  note  as 
paid,  when  it  has  only  been  endorsed  by  the  bank  and 
re-discounted,  is  a  false  entry,,  Dorsey  vs.  United  States, 
101  Federal,  746.  An  entry  as  money  deposited  of  a  sum 
of  money  left  with  the  bank  in  a  sack  as  a  special  de- 
posit, is  a  false  entry,  United  States  vs.  Peters,  87  Fed- 
eral, 985.  The  entry  on  a  bank  book  of  a  transaction 
just  as  it  occurred,  although  such  transaction  be  a  fraud 


604  Federal  Criminal  Law  Procedure. 

on  the  bank,  is  not  a  false  entry,  Dow  vs.  United  States, 
82  Federal,  904;  U.  S.  vs.  Young,  128  Federal,  111.  And 
the  crime  of  making  false  entries  may  be  committed 
personally  or_by  direction,  and  an  officer  directing  the 
making  of  false  entries  is  liable  therefor,  Agnew  vs. 
United  States,  165  U.  S.,  36;  United  States  vs.  Youtsey, 
91  Federal,  864;  Scott  vs.  United  States,  130  Federal, 
429;  United  States  vs.  Allis,  73  Federal,  165;  United 
States  vs.  Harper,  33  Federal,  480;  United  States  vs. 
Fisk,  24  Federal,  585;  5  Federal  Statutes  Annotated, 
150.  Entries  in  the  book  of  a  national  bank,  which  .cor- 
rectly record  actual  transactions  of  the  bank,  although 
such  transactions  may  have  been  unauthoried,  or  even 
fraudulent,  are  not  false  entries,  and  will  not  sustain 
an  indictment,  Twining  vs.  United  States,  141  Federal, 
41.  That  the  including  of  an  account  of  an  accommoda- 
tion note,  given  to  cover  overdrafts,  in  a  report  made  to 
the  Comptroller  was  not  a  false  entry  within  the  mean- 
ing of  the  statute,  was  decided  by  the  Circuit  Court  of 
Appeals  for  the  Eighth  Circuit  in  Hayes  vs.  United 
States,  169  Federal,  101.  Any  false  entry  made  in  a 
report  to  the  Comptroller  is  within  the  meaning  of  this 
statute  Cochran  vs.  United  '  States,  157  U.  S.,  293; 
United  States  vs.  Bartow,  10  Federal,  874;  United  States 
vs.  Means,  42  Federal,  599;  United  States  vs.  Hughitt, 
45  Federal,  47;  United  States  vs.  Allen,  47  Federal,  696; 
United  States  vs.  French,  57  Federal,  382. 

In  Harper  vs.  United  States,  170  Federal,  385,  the  Cir- 
cuit Court  of  Appeals  for  the  Eighth  Circuit  held  that 
the  section  makes  it  a  criminal  offense  for  any  officer 
or  agent  of  a  national  bank  to  make  any  false  entry  in 
a  report  of  the  association,  with  the  intent  to  deceive 
any  officer  of  the  association,  etc.,  whether  the  report  was 
voluntarily  made,  or  was  one  required  by  law,  if  the 
false  entry  was  made  with  the  request  unlawful  intent. 
This  case  also  passes  upon  the  sufficiency  of  an  indict- 
ment and  its  requisite  averments  in  the  matter  of  setting 
out  the  report  and  holds  that  if  the  indictment  shows 
the  date  upon  which  the  report  was  made  and  that  it 
was  a  report  made  to  the  comptroller  showing  resources 


National  Banks.  605 

and  liabilities  on  a  certain  date,  it  is  sufficient  to  author- 
ize the  presumption  that  it  was  a  report  made  by  the 
association  under  Section  5211. 

District  Judge  Sanborn,  in  United  States  vs.  Corbett, 
162  Federal,  687,  held  that  an  indictment  which  charged 
as  officer  of  a  bank  with  making  a  false  entry  in  a  report 
made  by  him,  "with  intent  to  deceive  an  agent  appoint- 
ed to  examine  the  affairs  of  the  association,  to  wit,  the 
Comptroller  of  the  Currency  of  the  United  States,"  did 
not  charge  as  offense;  holding  that  the  Comptroller  was 
not  charged  with  the  duty  to  examine  national  banks. 
Without  accepting  this  doctrine  as  the  law,  it  is  suggest- 
ed that  in  the  drafting  of  indictments  under  this  portion 
of  the  statute,  the  allegation  should  be  made  that  the 
intent  was  to  deceive  an  agent  appointed  to  examine  the 
affairs  of  the  association,  to  wit,  a  national  bank  ex- 
aminer. 

In  United  States  vs.  Morse,  161  Federal,  429,  the 
Court  held  that  the  word  "entry"  in  the  statute  means 
"any  item  in  an  account."  In  United  States  vs.  Wilson, 
176  Federal,  806,  District  Judge  Sheppard  held  that  the 
intent  to  deceive  may  be  inferred  from  the  making  of 
flic  entry,  and  such  false  entry  may  be  made  either  per- 
sonallv,  or  bv  direction.  In  Morse  vs.  United  States,  174 
Federal,  539,  the  Circuit  Court  of  Appeals  for  the  Second 
Circuit  affirmed  the  doctrine  that  false  entries  may  be 
made  by  direction.  In  other  words  the  defendant,  in 
that  case  did  not  make  the  entries  with  his  own  pen. 
All  of  them  were  made  by  the  employees  of  the  company, 
as  a  part  of  their  routine  work.  The  Court  held  that  it 
was  wholly  immaterial  whether  such  officer  acts  through 
a  pen  or  a  check  controlled  by  him. 

§  378a.  False  Entries  and  False  Reports  Continued. 
— One  is  guilty  under  this  section  for  causing  or  pro- 
curing the  making  of  false  entries.  Richardson  vs.  U. 
S.,  181  Federal,  1.  The  concealment  of  facts  necessary 
to  enable  the  bookkeeper  to  make  entries  would  not  be 
a  false  entry  by  the  officer  so  concealing.  U.  S.  vs.  Mc- 
Clarty,  191  Federal,  532. 

False  reports  made  by  a  clerk  under  the  direction  of 


606  Federal  Criminal  Law  Procedure. 

one  of  the  persons  mentioned  in  the  statute  is  the  same 
as  though  such  person  himself  made  the  false  report. 
Kettenbach  vs.  U.  S.,  202  Federal,  377. 

§  378b.  Admission  of  Books. — The  books  of  the  na- 
tional bank  in  which  the  offense  is  charged  to  have  oc- 
curred are  always  admissable  without  proof  that  they 
were  correctly  kept.  In  other  words,  they  are  admitted 
in  evidence  after  proof  that  they  are  such  books.  When, 
however,  books  of  a  bank  not  involved  in  the  prosecu- 
tion are  sought  to  be  introduced  there  must  first  be  the 
proof  that  they  were  correctly  kept,  etc.  Phillips  vs. 
U.  S.,  201  Federal,  260. 

§  379.  Other  Cases.— In  United  States  vs.  Morse,  161 
Federal,  429,  the  Court  held  that  the  subsequent  return 
of  the  money  was  no  defense  to  a  prosecution  for  misap- 
plication, such  fact  being  only  evidence  to  negative  the 
officer's  intent  to  defraud  at  the  time  of  the  alleged  of- 
fense, and  thus  testimony  could  be  introduced  for  jury 
purposes.  In  United  States  vs.  Hillegass,  176  Federal, 
444,  will  be  found  a  copy  of  indictment  for  aiding  and 
abetting  under  this  statute.  See  also  Brown  vs.  United 
States,  a  prosecution  for  aiding  and  abetting,  142  Fed- 
eral, page  2.  In  Walsh  vs.  United  States,  174  Federal, 
621,  the  defendant  was  convicted,  and  his  conviction  was 
affirmed  while  he  was  on  bond.  After  the  affirmance, 
the  United  States  filed  a  motion  to  have  him  appear  and 
show  cause  why  his  bail  should  not  be  set  aside.  The 
Court  refused  the  petition,  on  the  ground  that  no  un- 
usual reason  was  shown  why  he  was  not  likely  to  remain 
within  the  jurisdiction  pending  a  motion  for  re-hearing 
which  he  had  made.  In  Walsh  vs.  United  States,  174 
Federal,  615,  the  Court  held  that  it  was  misapplication 
for  an  officer  of  a  national  bank,  who  is  ajso  a  promoter 
of  various  enterprises,  to  obtain  the  funds  of  the  bank 
on  the  security  of  unmarketable  bonds  of  his  own  enter- 
prises at  the  risk  of  the  interests  of  the  bank.  In  that 
case,  it  was  also  determined  on  the  same  writ  of  error 
that  a  juror  on  a  criminal  case  cannot  afterwards  im- 
peach a  verdict  in  which  he  joined. 

In  Woods  vs.  United  States,  174  Federal,  651,  the  Cir- 


National  Banks.  607 

cuit  Court  of  Appeals  for  the  Fifth  Circuit  affirmed  the 
well-established  doctrine  in  a  bank  case  applicable  in 
all  Federal  criminal  cases,  that  a  general  verdict  and 
judgment  on  an  indictment  containing  several  counts, 
cannot  be  reversed  on  error,  if  one  of  the  counts  is  good 
and  warrants  the  judgment. 

It  has  been  held,  of  course,  that  a  conspiracy  to  violate 
this  section  is  indictable  under  Section  5440  of  the  old 
Code,  Scott  vs.  United  States,  130  Federal,  429. 

For  a  definition  of  "moneys,  funds,  and  credits,"  see 
United  States  vs.  Smith,  152  Federal,  542  which  holds,  , 
in  substance  that  the  word  "moneys"  refers  to  the  cur- 
rency or  circulating  medium  of  the  country;  the  word 
"funds"  refers  to  Government,  State,  county,  munici- 
pal, or  other  bonds,  and  to  other  forms  of  obligations  and 
securities  in  which  investments  may  be  made;  and  the 
word  "credits"  refers  to  notes  and  bills  payable  to  the 
bank,  and  other  forms  of  direct  promises  to  pay  money 
to  it. 

In  Thompson  vs.  United  States,  159  Federal,  801,  the 
Circuit  Court  of  Appeals  for  the  First  Circuit  approves 
an  indictment  against  a  cashier,  which  charged  that  that 
officer  unlawfully  "converted"  certain  moneys,  funds, 
and  credits  to  the  use  of  another.    The  Court  said : 

"The  word  'convert'  has  such  force  at  Common  Law  that  when  used 
in  an  indictment  with  a  statement  as  to  whose  use  the  conversion  was 
made,  it  needs  no  amplification,  any  more  than  the  word  'embezzle' 
or  the  words  'take,  steal,  and  carry  away'  (citing  the  Jewett  case, 
100  Federal,  832).  It  is  true  that  the  word  'convert'  is  also  awkward 
in  the  place  where  we  find  it  here,  but  no  objection  was  attempted 
on  that  ground,  and  its  use,  as  used  here,  has  been  accepted  by  the 
Supreme  Court  in  a  like  connection  for  the  same  purpose,  Coffin  vs. 
United  States,  156  U.  S.,  432,  39  Law  Ed.,  481;  same  case,  162  U.  S., 
666,  40  Law  Ed.,  1109.  The  word  'convert'  under  the  circumstances, 
must  be  accepted  as  intending  exactly  the  same  thing  as  when  spoken 
in  connection  with  the  use  of  the  person  who  was  guilty  of  the  con- 
version." 

In  the  case  of  United  States  vs.  Steinman,  172  Federal, 
913,  the  Circuit  Court  of  Appeals  for  the  Third  Circuit 
held  that  wilful  misapplication  of  the  funds  of  a  national 
bank,  in  order  to  constitute  an  offense  under  this  section, 


t 


7 


608  Federal  Criminal  Law  Procedure. 

must  be  a  wilful  misapplication,  for  the  use  or  benefit 
of  the  accused,  or  of  some  person  or  company  other 
'  than  the  banking  association,  with  intent  to  injure  and 
entirely  different  from  facts  constituting  unofficial  mal- 
administration, subjecting  the  bank  to  a  forfeiture  of 
its  charter,  and  an  unintentional  overdraft  by  a  deposit- 
or in  good  standing  and  possessing  ample  means  to  pay, 
or  an  overdraft  to  be  paid  pursuant  to  a  prior  agreement, 
resting  on  abundant  credit,  does  not  constitute  misap- 
plication. 

In  that  case  also,  there  was  a  count  for  aiding  and 
abetting,  and  the  Court  held  that  in  a  prosecution  for 
aiding  and  abetting  the  officers  of  a  national  bank  to 
wilfully  abstract  the  funds  of  the  bank,  by  means  of 
certain  overdrafts,  evidence  that  prior  to  the  making  of 
such  overdrafts,  it  was  agreed  that  the  bank  should 
furnish  funds  for  the  operations  of  certain  corporations, 
in  which  the  accused  and  the  bank's  president  and  cash- 
ier were  officers,  and  that  from  time  to  time  notes  should 
be  given  by  such  corporations  to  take  up  the  overdrafts, 
and  that  at  the  time  of  the  advances  the  value  of  the 
corporation's  property  was  more  than  three  hundred 
thousand  dollars,  while  the  overdrafts  aggregated  only 
thirty  thousand  dollars,  was  admissible  to  show  absence 
of  criminal  intent. 

Sec.  379  a.  Federal  Reserve  Banks  Statute  Contin- 
ued. 

The  elaboration  and  enlargement  of  sections  5208  and 
5209  loses  entirely  the  words  National  Banking  Associa- 
tion and  substitutes  the  words  "member  bank"  and  Fed- 
eral reserve  bank,  etc., 

A  member  bank  is  any  National  Bank  because  every 
national  bank  under  the  Federal  reserve  Act  musf  be- 
come  a  member  bank  or  lose  its  charter.  Arry_^ta^bank 
may  become  a  member  bank  see  Arts.  9284-9308,  1919 

•* 7 

Barnes  Federal  Code. 

Indictments  should  carefully  include  a  sufficient  dis- 
tinction to  show  the  federal  jurisdiction. 

Sec.  379  b.  Limit  of  Liability  to  be  Incurred  bv  an 
Individual. 


National  Banks.  609 

Since  section  5200  of  the  old  statute  is  often  valuable 
for  both  the  defense  and  prosecution  in  a  criminal  case 
under  5208  and  5209  as  amended,  the  new  5200,  as  amend- 
ed in  1906,  and  1918,  is  given  as  follows: — 

"The  total  liabilities  to  any  association,  of  any  person,  or  of  any 
company,  corporation,  or  firm  for  money  borrowed,  including  in  the 
liabilities  of  a  company  or  firm  the  liabilities  of  the  several  mem- 
bers thereof,  shall  at  no  time  exceed  10  per  centum  of  the  amount 
of  the  capital  stock  of  such  association,  actually  paid  in  and  unim- 
paired, and  10  per  centum  of  its  unimpaired  surplus  fund:  Pro- 
vided, however,  That  (1)  the  discount  of  bills  of  exchange  drawn 
in  good  faith  against  actually  existing  values,  (2)  the  discount  of 
commercial  or  business  paper  actually  owned  by  the  person,  compa- 
ny, corporation,  or  firm,  negotiating  the  same,  and  (3)  the  purchase 
or  discount  of  any  note  or  notes  secured  by  not  less  than  a  like 
face  amount  of  bonds  of  the  United  States  issued  since  April  24, 
1917,  or  certificates  of  indebtedness  of  the  United  States,  shall  not 
be  considered  as  money  borrowed  within  the  meaning  of  this  sec- 
tion; but  the  total  liabilities  to  any  association,  of  any  person  or 
of  any  company,  corporation,  or  firm,  upon  any  note  or  notes  pur- 
chased or  discounted  by  such  association  and  secured  l\y  such  bonds 
or  certificates  of  indebtedness,  shall  not  exceed  (except  to  the  ex- 
tent permitted  by  rules  and  regulations  prescribed  by  the  Comp- 
troller of  the  Currency,  with  the  approval  of  the  Secretary  of  the 
Treasury)  10  per  centum  of  such  capital  stock  and  surplus  fund  of 
such  association." 


39 


CHAPTER  XIX. 

BANKRUPTCY. 

$  380.     Section   29   of  the  Act. 

381.  Other   Offenses   of   the   Section. 

382.  Illustrative    Cases    and    Decisions. 
382a.  Decisions  Continued. 

383.  Failure   to   Pay   Over   Money. 

§  380.  The  National  Bankrupt  Act,  passed  in  1898, 
in  answer  to  a  universal  demand,  and  under  the  authority 
of  the  Constitution,  has  been  amended  twice  by  Congress 
in  matters  that  do  not  relate  to  its  criminal  sections. 
Original  Section  29  of  the  Bankrupt  Act,  which  is  the 
law  today  with  reference  to  offenses  against  that  Act, 
reads  as  follows: 

"Sec.  29a.  A  person  shall  be  punished,  by  imprisonment  for  a 
period  not  to  exceed  five  years,  upon  conviction  of  the  offense  of  hav- 
ing knowingly  and  fraudulently  appropriated  to  his  own  use,  em- 
bezzled, spent,  or  unlawfully  transferred  any  property  or  secreted  or 
destroyed  any  document  belonging  to  a  bankrupt  estate  which  came 
into  his  charge  as  trustee. 

ub.  A  person  shall  be  punished,  by  imprisonment  for  a  period 
not  to  exceed  two  years,  upon  conviction  of  the  offense  of  having 
knowingly  and  fraudulently  (1)  concealed  while  a  bankrupt,  or  after 
his  discharge,  from  his  trustee  any  of  the  property  belonging  to  his 
estate  in  bankruptcy;  or  (2)  made  a  false  oath  or  account  in,  or  in 
relation  to,  any  proceeding  in  bankruptcy;  (3)  presented  under  oath 
any  false  claim  for  proof  against  the  estate  of  a  bankrupt,  or  used 
any  such  claim  in  composition  personally  or  by  agent,  proxy,  or  at- 
torney, or  an  agent,  proxy,  or  attorney;  or  (4)  received  any  material 
amount  of  property  from  a  bankrupt  after  the  filing  of  the  petition, 
with  intent  to  defeat  this  act;  or  (5)  extorted  or  attempted  to  ex- 
tort any  money  or  property  from  any  person  as  a  consideration  for 
acting  or  forbearing  to  act  in  bankruptcy  proceedings. 

"c.  A  person  shall  be  punished  by  fine,  not  to  exceed  five  hundred 
dollars,  and  forfeit  his  office,  and  the  same  shall  thereupon  become 
vacant,  upon  conviction  of  the  offense  of  having  knowingly  (1)  acted 
as  a  referee  in  a  case  in  which  he  is  directly  or  indirectly  interested; 
or  (2)  purchased,  while  a  referee,  directly  or  indirectly,  any  prop- 
erty of  the  estate  in  bankruptcy  of  which  he  is  referee;  or  (3)  re- 
fused, while  a  referee  or  trustee,  to  permit  a  reasonable  opportunity 
for  the  inspection  of  the  accounts  relating  to  the  affairs  of,  and  the 

(610) 


Bankruptcy.  611 

papers   and  records   of,  estates   in   his   charge  by   parties   in   interest 
when  directed  by  the  court  so  to  do. 

"(Z.  A  person  shall  not  be  prosecuted  for  any  offense  arising  under 
this  act  unless  the  indictment  is  found  or  the  information  is  filed  in 
court  within  one  year  after  the  commission  of  the  offense." 

Section  a  of  the  Act  relates  alone  and  exclusively  to 
punishment  of  the  trustee  for  having  knowingly  and 
fraudulently  appropriated  to  his  own  use,  embezzled,  or 
spent,  or  transferred,  or  secreted,  or  destroyed  any  of  the 
property,  or  any  document  belonging  to  an  estate  which 
he  administers  as  such  officer  of  the  Court. 

A  satisfactory  indictment  under  this  secttion  must 
necessarily  allege  an  adjudication,  the  time  and  date 
of  the  appointment  of  the  trustee,  and  his  qualification, 
and  then  set  out  specifically  the  property  he  is  charged 
to  have  converted,  destroyed,  or  transferred,  as  fully  and 
specifically  as  if  the  offense  was  for  larceny,  with  the 
exception  that  consent  of  the  bankrupt  is  unnecessary, 
for  the  reason  that  the  title  vests  in  the  trustee  under 
the  statute.  The  section  includes  not  only  an  appropria- 
tion to  the  trustee's  own  use,  but  an  unlawful  transfer 
of  the  property  for  the  use  of  another.  It  is  true  the 
word  "unlawfully'  as  used  with  reference  to  the  trans- 
fer would  perhaps  include  some  sort  of  a  gain  or  motive 
beneficial,  or  supposedly  beneficial,  to  the  trustees.  If, 
however,  the  proof  showed  a  reckless  disregard  of  his 
obligations  and  duties  as  trustee,  in  the  way  of  wilful 
destruction  or  secretion  of  the  property  or  documents 
of  the  estate,  manifestly  for  the  purpose  of  defeating  a 
proper  administration  of  the  trust,  a  case  would  be  made 
out  under  this  section. 

§  381.  Other  Offenses  of  the  Section. — Paragraphs  1, 
2,  and  5,  of  sub-division  b  of  Section  29,  relate  to  offenses 
committed  by  the  bankrupt.  Paraghaph  2,  3,  4,  and  5 
of  subdivision  b  of  Section  29,  create  offenses  that  may 
be  committed  by  persons  who  are  not  bankrupts.  Sec- 
tion c  of  subdivision  b  of  Section  29  relates  to  offenses 
by  the  referee  in  bankruptcy,  and  sub-division  d  of  the 
section  creates  a  particular  statute  of  limitation  for  all 
the  bankrupt  offenses  described  in  the  entire  section,  to 


612  Fedeeal  Ceiminal  Law  Peoceduee. 

wit,  that  the  indictment  must  be  found,  or  the  informa- 
tion filed,  within  one  year. 

§  382.  Decisions. — An  indictment  in  the  terms  of  the 
section,  which  charges  the  knowing  and  fraudulent  con- 
cealment, while  a  bankrupt,  or  after  his  discharge,  from 
his  trustee,  of  any  of  the  property  belonging  to  his  estate 
in  bankruptcy,  sets  forth  the  elements  of  the  offense,  and 
is  sufficient.  United  States  vs.  Comstock,  161  Federal, 
644.  It  is  not  necessary  to  allege  in  the  indictment  that 
the  bankrupt,  at  the  time  of  the  concealing  of  his  prop- 
erty, knew  either  the  fact  that  a  trustee  had  been  ap- 
pointed for  his  estate,  or  the  name  of  such  trustee, 
United  States  vs.  Comstock,  161  Federal,  644. 

The  word  "conceal"  as  used  in  the  section,  is  of  plain 
import,  and  when  coupled  in  an  indictment  with  the 
words  "unlawful,  knowingly,  and  fraudulently,"  clearly 
excludes  unintentional  acts,  United  States  vs.  Comstock, 
161  Federal,  644.  The  offense  of  concealing  property, 
by  a  bankrupt,  form  his  trustee,  consists  of  a  continuous 
concealment  of  the  property  from  the  trustee  during  the 
whole  course  of  the  bankruptcy  proceedings,  or  beyond, 
and  is,  therefore,  not  necessarily  consummated  by  an 
omission  of  the  property  from  the  schedules,  Johnson  vs. 
United  States,  163  Federal,  30. 

In  an  indictment  against  a  bankrupt  and  others  for  a 
conspiracy  to  conceal  assets  of  the  estate  from  his  trus- 
tee in  bankruptcy,  an  averment  that  the  trustee  was 
"duly"  appointed  trustee  is  sufficient;  the  matter  of 
appointment  being  an  incidental  matter  only,  and  not 
a  vital  element  of  the  crime. 

In  United  States  vs.  Lake,  129  Federal,  499,  Judge 
Treber  held,  on  demurrer,  that  an  indictment  against 
the  president  of  a  bankrupt  corporation,  for  making  a 
false  oath  to  its  schedules,  which  showed  that  the  defend- 
ant, as  its  president,  in  compliance  with  the  bankrupt 
law,  did  file  in  the  bankruptcy  proceedings,  with  the  ref- 
eree, the  schedules  required  by  law,  subscribed  and 
sworn  to  him,  as  president;  that  the  defendant  stated 
on  his  oath  that  such  schedules  contained  a  true  and 
complete   statement  of  all   the   corporation's  property; 


Bankruptcy.  613 

and  that  the  statement  that  the  bankrupt  corporation 
had  then  on  hand  onlv  the  sum  of  a  hundred  dollars, 
which  was  all  the  money  the  corporation  then  and  there 
had — was  false,  such  an  indictment  followed  the  strict 
language  of  the  Act,  and  sufficiently  showed  the  ma- 
teriality of  the  false  statement,  without  the  express  aver- 
ment thereof. 

An  indictment  for  conspiracy  to  fraudulently  conceal, 
etc.,  property  from  a  trustee,  is  not  insufficient  because 
it  charges  that  the  property  was  removed  and  concealed 
prior  to  the  bankruptcy,  where  it  also  avers  that  the  con- 
cealment was  continued  after  the  bankruptcy,  and  after 
the  appointment  of  the  trustee,  and  that  the  property 
was  not  scheduled  by  the  bankrupt. 

A  charge  of  conspiracy  to  conceal,  etc.,  may  be  sup- 
ported by  evidence  that  the  property  was  sold  under  a 
chattel  mortgage,  given  by  the  bankrupt  prior  to  the 
bankruptcy,  where  it  is  shown  that  such  mortgage  and 
sale  were  merely  colorable  and  that  the  property  in  fact 
remained  that  of  the  bankrupt.  In  United  States  vs. 
Grodson,  164  Federal,  157,  the  Cohen  case  is  affirmed, 
but  Judge  Sanborn  holds  that  an  indictment  charging 
a  conspiracy  to  sell,  etc.,  where  it  shows  that  the  con- 
spiracy was  formed  and  the  property  removed  and  con- 
cealed, prior  to  the  bankruptcy,  but  does  not  aver  that  it 
was  in  contemplation  of  bankruptcy,  or  that  any  overt 
act  was  committed  after  the  bankruptcy,  although  it 
charges  a  further  conspiracy  thereafter  to  continue  the 
concealment,  is  insufficient.  The  officer  of  a  bankrupt 
corporation,  who  is  not,  and  has  not  been,  a  bankrupt, 
is  not  liable  under  this  section  for  having  frauduently 
and  knowingly  concealed  the  property  of  the  estate  of 
the  corporation  in  bankruptcy  from  its  trustee.  The 
present  or  past  bankruptcy  of  the  accused  is  an  indis- 
pensable element  of  the  offense  denounced  by  the  statute. 
A  penal  statute  which  creates  and  denounces  a  new  of- 
fense, must  be  strictly  construed.  Where  it  is  plain 
and  unambiguous,  the  courts  may  not  lawfully  extend 
it  by  interpretation,  to  a  class  of  persons  who  are  ex- 
cluded from  its  effect  by  its  terms,  for  the  reason  that 


614  Federal  Criminal  Law  Procedure. 

their  acts  may  be  as  mischievous  as  those  of  the  class 
whose  deed  it  denounces,  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit  in  Field  vs.  United  States,  137  Federal, 
page  6. 

To  the  same  effect  is  United  States  vs.  Lake,  129  Fed- 
eral, 499,  where  it  was  held  that  paragraph  b  of  the  Act, 
providing  that  a  person  shall  be  punished  on  conviction 
for  having  knowingly  and  fraudulently  concealed,  while 
a  bankrupt,  or  after  his  discharge,  from  his  trustees, 
any  of  the  property  belonging  to  his  estate  in  bank- 
ruptcy, must  be  strictly  construed,  and  does  not  include 
officers  of  a  corporation  declared  a  bankrupt.  A  bank- 
rupt corporation  may  commit  the  criminal  offense  of 
knowingly  and  fraudulently  concealing  its  property  from 
its  trustee,  denned  and  made  punishable  by  the  Act,  and 
individuals  who  conspire  to  cause  a  corporation  to  com- 
mit such  offense  are  indictable  under  old  Section  5440, 
and  it  is  immaterial  that  the  corporation  is  not,  or  can- 
not be,  indicted  as  one  of  the  conspirators,  Circuit  Court 
of  Appeals  for  the  Second  Circuit,  in  Cohen  vs.  United 
States,  157  Federal,  651. 

From  the  above  decisions,  will  be  drawn  this  line  of 
law  to  wit: 

First,  that  an  officer  of  a  bankrupt  corporation  cannot 
be  indicted  for  concealing  the  property  of  the  bankrupt 
from  the  trustees,  because  he,  the  officer,  is  not  the  bank- 
rupt. 

Second,  The  bankrupt  corporation  may  be  indicted  for 
concealing  its  property  from  the  trustee. 

Third,  Individuals  who  conspire  to  conceal  the  prop- 
erty of  a  bankrupt  corporation  may  be  indicted  for  an 
offense  under  the  general  conspiracy  statute,  which  was 
old  Section  5440,  as  amended. 

The  case  of  Johnson  vs.  United  States,  170  Federal, 
581,  by  the  Circuit  Court  of  Appeals  for  the  First  Cir- 
cuit, permits  the  trustee  in  bankruptcy  to  testify  that  he 
had  never  learned  from  the  bankrupt  that  there  was 
pro])erty  belonging  to  the  bankrupt  stored  in  the  places 
where  the  goods  covered  by  the  indictment  were  found, 
and  that  the  trustee  himself  found  the  goods  in  question, 
apparently  without  the  assistance  of  the  bankrupt,  even 


Bankruptcy.  615 

though  such  testimony  was  objected  to  on  the  ground 
that  it  was  an  attempt  to  disclose  the  bankrupt's  testi- 
mony before  the  referee.  The  decision  distinguishes  the 
cases  of  Jacobs  vs.  United  States,  161  Federal,  694, 
and  Johnson  vs.  United  States,  163  Federal,  page  30, 
which  two  cases  those  respective  Courts  held  to  be  in- 
direct methods  of  introducing  the  bankrupt's  schedule 
of  assets  and  liabilities  against  him  in  criminal  cases; 
the  Johnson  and  Jacobs  cases  holding  that  this  cannot  be 
done,  of  course,  directly  or  indirectly. 

The  .Circuit  Court  of  Appeals  for  the  First  Circuit,  in 
Kerrch  vs.  United  States,  171  Federal,  366,  held  that  on 
the  trial  of  an  involuntary  bankrupt  for  conspiracy  to 
conceal  property  from  its  trustees,  it  was  not  error  to 
admit  in  evidence,  over  the  defendant's  objection  and 
claim  of  privilege  his  books  of  account,  which  had  been 
taken  possession  of  by  a  receiver  appointed  by  the  bank- 
ruptcy court. 

In  Wechsler  vs.  United  States,  158  Federal,  579,  the 
Circuit  Court  of  Appeals  for  the  Second  Circuit  held  that 
Section  7  of  the  Bankrupt  Act,  which  requires  the  bank- 
rupt to  submit  to  an  examination  under  oath  as  to  vari- 
ous matters  specified,  with  the  proviso  that  "no  testi- 
mony given  by  him  shall  be  offered  in  evidence  against 
him  in  any  criminal  proceeding, ' '  does  not  give  immunity 
from  prosecution  for  giving  false  testimony  upon  any 
such  examination.  That  case  further  holds  that  if  there 
be  false  testimony  upon  such  examination,  it  may  be 
prosecuted  under  the  old  perjury  statute,  which  was  old 
Section  5392,  or  under  the  bankrupt  statute,  now  being 
considered,  for  making  a  false  oath.  See  also  United 
States  vs.  Bartlett,  for  perjury  in  schedules,  106  Federal, 
page  884;  and  for  other  cases  bearing  upon  this  section 
United  States  vs.  Owen,  32  Federal,  534;  United  States 
vs.  Bozer,  4  Dillion,  407;  also  cases  in  5  Federal,  681, 
and  7  Federal,  715;  United  States  vs.  Jackson,  2  Federal, 
502;  United  States  vs.  Bayer,  4  Dillon,  407,  Federal  Case 
No.  14547;  United  States  vs.  Houghton,  14  Federal,  544. 
In  Johnson  vs.  United  States,  158  Federal,  page  69, 
the  Circuit  Court  of  Appeals  for  the  Fifth  Circuit  re- 
versed a  judgment  of  conviction  and  dismissed  the  in- 


616  Federal  Criminal  Law  Procedure. 

dictrnent  and  discharged  the  defendant  under  an  indict- 
ment which  charged  a  conspiracy  under  old  Section  5440, 
to  conceal  property  from  the  trustee,  where  the  indict- 
ment alleged  that  the  conspirators  were  the  trustee,  the 
bankrupt,  and  a  third  party;  the  bankrupt  and  the  third 
party  having  been  convicted.  The  Court  of  Appeals 
dismissed  the  indictment,  and  discharged  the  trustee, 
holding  that  the  trustee  could  not  conspire  to  conceal 
from  himself.  A  consideration  of  this  opinion  is  ad- 
vised, together  with  the  reasoning  in  Cohen  vs.  United 
States,  157  Federal,  651,  where  the  Court  of  Appeals  for 
the  Second  Circuit  held  that  in  a  conspiracy  prosecution, 
it  was  immaterial  that  the  corporation  is  not,  or  can- 
not be,  indicted  as  one  of  the  conspirators;  also  with  the 
case  of  3  Howell's  State  Trials,  402,  where  a  husband 
was  convicted  for  conspiring  to  rape  his  own  wife,  even 
though  he  himself  could  not  commit  such  rape. 

§  382a.  Decisions  Continued. — Perjury  may  be  assign- 
ed for  swearing  falsely  on  the  examination  provided  for 
by  the  statute.  Daniels  vs.  U.  S.,  196  U.  S.,  459.  Indict- 
ment for  concealing  must  be  brought  within  one  year 
from  the  date  of  actual  concealment.  U.  S.  vs.  Philips, 
196  Federal,  574;  also  upon  the  question  of  limitation 
see  Warren  vs.  United  States.,  199  Federal,  753.  Bank- 
rupt is  entitled  to  the  presumption  of  innocence  upon 
charge  of  concealment.  Chadkowski  vs.  U.  S.,  194  Fed- 
eral, 858.  Indictment  will  lie  for  concealing  an  interest 
in  property.  Leders  vs.  U.  S.,  210  Federal,  419.  For 
making  false  oath  and  proof  thereof,  see  Kavoloff  vs. 
U.  S.,  202  Federal,  475;  Kahn  vs.  U.  S.,  214  Federal, 
54.  It  is  not  necessary  to  allege  the  appointment  of  a 
trustee  in  an  indictment  charging  a  conspiracy  to  con- 
ceal. Steigman  vs.  U.  S.,  220  Federal,  63.  For  cases 
charging  conspiracy  to  conceal  assets  from  trustee  see 
Radin  vs.  U.  S.,  189  Federal,  568.  Roukous  vs.  U.  S., 
195  Federal,  353.  A  corporation  may  be  one  of  the  con- 
spirators, Ronkous  vs.  U.  S.,  195  Federal,  353.  One  who 
is  not  a  bankrupt  may  conspire  to  conceal,  provided 
there  is  included  in  the  conspiracy  the  bankrupt.  Kauf- 
man vs.  U.  S.,  212  Federal,  613.  Perjury  cannot  be  as- 
signed on  an  examination  of  the  bankrupt  where  such 


Bankruptcy.  617 

examination  was  ex  parte  and  when  there  was  no  issue. 
U.  S.  vs.  Rhodes,  212  Federal,  518.  The  constitutional 
provision  that  no  man  shall  be  compelled  to  be  a  witness 
against  himself  is  applicable  to  bankrupt  and  entitles 
him  to  refuse  not  only  to  give  oral  testimony,  but  to 
produce  books  and  papers  which  will  tend  to  incriminate 
him.  U.  S.  vs.  Rhodes,  212  Federal,  518,  which  case  will 
have  to  be  circumspectly  read  in  order  to  give  very 
much  weight  to  it  in  view  of  the  decision  of  the  Supreme 
Court  in  re  Harris,  221  IT.  S.,  274,  where  it  was  held 
that  the  right  under  the  Fifth  Amendment  not  to  be  com- 
pelled to  be  a  witness  against  one's  self  is  not  a  right 
to  appropriate  property  that  may  tell  one's  story  and 
that  a  bankrupt  is  not  deprived  of  his  constitutional 
right  not  to  testify  against  himself  by  an  order  requir- 
ing him  to  surrender  his  books  to  the  duly  authorized 
receiver.  The  decision  distinguishes  the  case  of  Counsel- 
man  vs.  Hitchcock,  142  U.  S.,  547,  which  seemed  to 
announce  a  somewhat  broader  doctrine  in  favor  of  the 
constitutional  guaranty  than  does  the  Harris  case.  A 
conspiracy  to  conceal  assets  must  include  the  bankrupt 
in  the  conspiracy  in  order  to  be  against  the  law.  Nem- 
cof  vs.  U.  S.,  202  Federal,  911;  U.  S.  vs.  Rhodes,  212 
Federal,  513. 

Sec.     382  b.     Decisions  Continued. 

A  partner  may  be  convicted  for  concealing  though 
only  the  "partnership"  was  adjudicated,  Cannetto  vs. 
U.  S.,  275  F.  42,  Malvin  vs.  U.  S.,  252  F.  449. 

For  a  definition  of  concealment  and  the  necessity  to 
prosecute  where  the  concealment  actually  took  place,  see 
Gretsch  vs.  U.  S.,  231  F.  57. 

Whether  it  was  a  voluntary  on  an  involuntary  adjudi- 
cation is  immaterial — different  kind  of  property  and  dif- 
ferent modes  of  concealment  do  not  render  the  indict- 
ment duplicitous,  Tugendhaft  vs.  U.  S.,  263  F.  562. 

For  extortion  bv  attorney  see  U.  S.  vs.  Dunkley,  235 
F.  1000. 

For  conspiracv  charges  and  indictment  see  Frankfurt 
vs.  U.  S.,  231  F.  903;  Friedman  vs.  U.  S.,  236  F.  816;  Kno- 
ell  vs.  U.  S.,  239  F.  16;  238  U.  S.  78. 


618  Federal  Criminal  Law  Procedure. 

The  officers  of  a  corporation  may  be  convicted  for  con- 
cealing under  this  statute,  Wolf  vs.  U.  S.,  238  F.  903. 

Proof  of  the  appointment  of  a  trustee  may  be  made  by 
parol  and  a  failure  to  give  bond  is  no  defense  to  the  crim- 
inal, Sharf  sin  vs.  U.  S.,  265  F.  916. 

Evidence  given  by  a  bankrupt  may  not  be  used  against 
him  in  a  criminal  case  but  objection  must  be  made  to  its 
use,  Bain  vs.  U.  S.,  262  F.  664. 

§  383.  Failure  to  Pay  over  Money. — From  the  power 
of  a  court  of  equity,  administering  the  Bankrupt  Statute, 
to  require  the  bankrupt  to  pay  over  money  or  other  prop- 
erty shown  clearly  to  be  in  his  possession,  or  go  to  jail  for 
contempt,  has  arisen  what  may  be  termed  another  crim- 
inal feature  of  the  law.  One  of  the  earliest  cases  under 
this  power  of  the  statute  is  in  re  Purvine,  96  Federal,  192 
wherein  a  commitment  to  the  Dallas  County  Jail,  by  Dis- 
trict Judge  Meek,  of  the  bankrupt  for  failure  to  pay  over 
certain  funds  shown  to  be  in  the  possession  of  the  bank- 
rupt, was  affirmed  by  the  Circuit  Court  of  Appeals  for  the 
Fifth  Circuit.     In  that  opinion,  the  Court  says: 

"If  the  court  of  bankruptcy  is  powerless  in  this  respect,  persons, 
by  becoming  bankrupts,  obtain  an  immunity  not  allowable  in  any 
other  court  of  equal  dignity,  either  Federal  or  State,  in  this  country." 

A  similar  jurisdiction  was  invoked  under  the  Act  of  1867. 
In  in  re  Mize  et  al,  172  Federal,  945,  District  Judge 
Grubb  maintains  the  same  power,  and  cities  a  number  of 
similar  decisions,  and  holds: 

"The  courts  have  been  very  careful  not  to  permit  contempt  pro- 
ceedings to  be  converted  into  a  means  of  coercing  payment  of  debts 
from  funds  other  than  assets  wrongfully  withheld  by  the  bankrupt, 
and  for  this  reason,  have  required  the  clearest  evidence  that  the 
bankrupt  had  the  assets  in  his  possession,  and  the  present  ability 
to  turn  them  over  to  the  trustee,  as  directed  by  the  order." 

See  also  Clay  vs.  Waters,  178  Federal,  385,  and  in  re 
Marks,  176  Federal,  1018,  where  it  was  held  that  a  bank- 
rupt should  not  be  committed  for  contempt  for  a  failure 
to  comply  with  an  order  requiring  him  to  turn  over 
money  to  his  trustee,  alleged  to  have  withheld,  where  the 
Court  is  convinced  that  the  bankrupt  is  without  physical 
ability  to  comply;  citing  also  171  Federal  281. 


CHAPTER  XX. 

FOOD  AND   DRUGS. 

§  384.     Act  of  June  13,   1906,  Generally. 

385.  Criminal  Sections. 

385a.  Amendment   Allowing   Variations. 
385b.     Criminal    Practice  Under. 

386.  Decisions. 

386a.  Decisions  Continued. 

386b.  Misbranded    Under   New  Amendment. 

387.  Importation   of  Opium. 
387a.  Additional  Opium   Statutes. 
387b.  These  Statutes  Constitutional. 
387bb.  Opinions   Decisions. 

§  384.  The  Act  of  June  30,  1906,  34  Stat.  L.,  768,  is 
what  is  known  as  the  Pure  Food  Act.  This  statute  con- 
tains thirteen  sections,  the  first  two  of  which  create  crim- 
inal offenses.  The  third  provides  for  rules  and  regula- 
tions by  the  Secretary  of  the  Treasury,  the  Secretary  of 
Agriculture,  and  the  Secretary  of  Commerce  and  Labor. 
The  fourth  provides  for  certain  chemical  examinations, 
hearings,  etc.  The  fifth  provides  for  legal  proceedings 
by  the  District  Attorney.  The  sixth  defines  drags 
and  food.  The  seventh  defines  adulterations,  etc. 
The  eighth  defines  misbranding,  etc.  The  ninth 
relates  to  a  guaranty  by  the  manufacturer.  The  tenth 
fixes  a  method  for  seizure  of  original  packages.  The 
eleventh  provides  for  an  examination  of  imported  foods 
and  drugs.  And  the  twelfth  includes  the  insular  posses- 
sions, and  defines  "person." 

§  385.  Criminal  Sections. — The  first  two  sections  are, 
therefore,  of  interest  to  us  here.  The  first  section  pro- 
vides that  it  shall  be  unlawful  for  any  person  to  manu- 
facture, within  any  Territory,  or  the  District  of  Columbia, 
any  article  of  food,  or  drugs,  which  is  adulterated  or  mis- 
branded,  within  the  meaning  of  the  Act,  and  fixes  a  penal- 
ty of  a  fine  not  to  exceed  five  hundred  dollars,  or  one 
year's  imprisonment,  or  both  such  fine  and  imprisonment, 
the  second  section  is  more  comprehensive,  because  it  ap- 
plies to  all  interstate  commerce,  and  reads  as  follows: 

(619) 


620  Federal  Criminal  Law  Procedure. 

"Sec.  2.  That  the  introduction  into  any  State  or  Territory  or  the 
District  of  Columbia  from  any  other  State  or  Territory,  or  the  Dis- 
trict of  Columbia,  or  from  any  foreign  country,  or  shipment  to  any 
foreign  country  of  any  article  of  food  or  drugs  which  is  adulterated 
or  misbranded,  within  the  meaning  of  this  Act,  is  hereby  prohibited; 
and  any  person  who  shall  ship  or  deliver  for  shipment  from  any 
State  or  Territory  or  the  District  of  Columbia  to  any  other  State  or 
Territory  or  the  District  of  Columbia,  or  to  a  foreign  country;  or 
who  shall  receive  in  any  State  or  Territory  or  the  District  of  Columbia 
from  any  other  State  or  Territory  or  the  District  of  Columbia,  or 
foreign  country,  and  having  so  received,  shall  deliver,  in  original  un- 
broken packages,  for  pay  or  otherwise,  or  offer  to  deliver  to  any  other 
person,  any  such  article  so  adultered  or  misbranded  within  the  mean- 
ing of  this  Act,  or  any  person  who  shall  sell  or  ofier  ror  sale  in  the 
District  of  Columbia  or  the  Territories  of  the  United  States  any  such 
adulterated  or  misbranded  foods  or  drugs,  or  export  or  offer  to  export 
the  same  to  any  foreign  country,  shall  be  guilty  of  a  misdemeanor,  and 
for  such  offense  be  fined  not  exceeding  two  hundred  dollars  for  the 
first  offense,  and  upon  conviction  for  each  subsequent  offense  not  ex- 
ceeding three  hundred  dollars  or  be  imprisoned  not  exceeding  one 
year,  or  both,  in  the  discretion  of  the  court.  Provided,  That  no  article 
shall  be  deemed  misbranded  or  adulterated  within  the  provisions  of 
this  Act  when  intended  for  export  to  any  foreign  country  and  prepared 
or  packed  according  to  the  specifications  or  directions  of  the  foreign 
purchaser  when  no  substance  is  used  in  the  preparation  or  packing 
thereof  in  conflict  with  the  laws  of  the  foreign  country  to  which  said 
article  is  intended  to  be  shipped;  but  if  said  article  shall  be  in  fact 
sold  or  offered  for  sale  for  domestic  use  or  consumption,  then  this 
proviso  shall  not  exempt  article  from  the  operation  of  any  of  the 
other  provisions  of  this  Act." 

§  385a.  Amendment  Allowing  Variations. — The  Act 
of  March  3,  1913,  allows  for  variations  in  weight,  measure 
and  amount  in  small  packages. 

The  breaking  of  Government  seals  on  interstate  ship- 
ments under  this  statute  relates  to  all  persons.  U.  S.  vs. 
Lewis,  U.  S.  Supreme  Court,  Oct.  Term,  1914. 

§  385b.  Criminal  Practice  Under. — It  is  not  a  condi- 
tion precedent  to  prosecution  that  a  hearing  be  had  by  the 
Department  of  Agriculture,  U.  S.  vs.  Morgan,  222  U.  S., 
274.  The  Secretary  of  Agriculture,  after  an  investigation 
of  an  alleged  violation,  should  certify  to  the  District  At- 
torney in  whose  district  prosecution  for  the  offense  should 
be  had.    U.  S.  vs.  Hopkins,  199  Federal,  649. 

While  the  statute  provides  that  proceedings  for  the 
seizure  of  goods  under  the  same  shall  be  by  libel  and  con- 


Foods  and  Drugs.  621 

form  as  near  as  may  be  to  proceedings  in  admiralty,  such 
proceeding  does  not  include  appellate  proceedings,  since 
the  action  of  the  District  Court  on  a  libel  can  only  be  re- 
viewed as  at  common  law  by  writ  of  error  and  not  by  ap- 
peal. Four  Hundred,  etc.,  vs.  U.  S.,  226  U.  S.,  173,  re- 
versing U.  S.  vs.  Four  Hundred,  etc.,  193  Federal,  589. 
A  writ  of  error  may  not  be  prosecuted  when  the  only 
question  involved  is  the  costs  of  the  original  proceeding. 
Charles  vs.  U.  S.,  183  Federal,  566.  The  prosecution  may 
be  by  information  for  the  first  offense.  U.  S.  vs.  Wells, 
186  Federal,  248. 

Since  the  crime  denounced  by  statute  is  the  shipping 
or  delivering  for  shipment  rather  than  the  introduction, 
though  of  course  the  shipment  must  be  interstate,  the 
venue  for  the  prosecution  is  at  the  point  of  shipment  or 
offering  for  shipment  rather  than  at  the  point  of  introduc- 
tion. U.  S.  vs.  Hopkins,  199  Federal,  649,  and  a  corpora- 
tion cannot  compel  the  Government  to  bring  its  action  in 
the  district  in  which  the  corporation  is  a  resident.  U.  S. 
vs.  Hopkins,  199  Federal,  649.  The  preliminary  exami- 
nation provided  for  in  the  law  is  not  necessary  before 
criminal  prosecution,  nor  is  it  necessary  to  allege  in  the 
indictment  that  there  was  a  preliminary  examination.  U. 
S.  vs.  Morgan,  222  U.  S.,  page  274;  Schraubstadter  vs.  U. 
S.,  199  Federal,  568. 

§  386.  Decisions. — In  in  re  Wilson,  168  Federal,  566, 
District  Judge  Brown  held  that  syrup,  10  per  cent  of 
which  is  made  from  maple  sugar  and  90  per  cent  from 
white  sugar,  put  up  in  bottles  having  thereon  labels  con- 
taining the  name  ' '  Gold  Leaf  Syrup, ' '  with  a  trade-mark 
consisting  of  a  gold  leaf  in  the  form  of  maple  leaf,  and 
stalks  of  sugar  cane,  and  the  words  ' '  composed  of  maple 
and  white  sugar"  in  plain  and  distinct  letters,  with  the 
name  of  the  maker,  cannot  be  said  to  be  misbranded, 
so  that  its  shipment  in  interstate  commerce  constitutes 
a  misdemeanor  under  this  Act. 

There  seems  to  have  been  some  trend  toward  including 
within  the  spirit  of  the  statute  such  articles  of  food  and 
drugs  as  may  claim  more,  in  an  advertising  way,  than  can 
actually  be  done;  but  the  purpose  of  the  statute  was  to 
rid  the  streams  of  commerce  of  deleterious  and  poisonous 


622  Federal  Criminal  Law  Procedure. 

food  and  drugs.  That  is  the  spirit  of  the  statute,  the  evil 
that  prompted  its  passage ;  and  a  construction  of  the  stat- 
ute that  would  run  from  the  market  food  and  drugs  that 
may  be  advertised  in  a  high-sounding  way,  but  which 
are  not  in  any  sense  injurious  to  the  health  of  the  people, 
would  be  unjustified.  There  is  a  distinction  between  the 
enforcement  of  law  and  the  abuse  of  law. 

Under  the  authority  of  the  United  States  vs.  Maufield, 
177  Federal,  765,  the  officers  of  a  corporation  which  man- 
ufactured a  food  product,  shipped  by  its  manager  in  in- 
terstate commerce,  and  which  was  adulterated  or  mis- 
branded,  are  subject  to  prosecution  under  the  Act,  where 
they  employed  the  manager  and  authorized  him  to  oper- 
ate the  plant  and  sell  the  product  without  restriction,  and 
the  previous  course  of  business  had  been  to  ship  on  orders 
to  other  states. 

That  case  also  determined  that  the  provision  of  the 
Act,  Section  9,  that  no  dealer  shall  be  prosecuted  there- 
under for  shipping  in  interstate  commerce  any  adulter- 
ated or  misbranded  article  of  food  or  drugs,  when  he  can 
establish  a  guaranty  signed  by  the  manufacturer,  that 
such  article  is  not  adulterated  or  misbranded,  is  not  avail- 
able to  a  dealer  only  when  such  guaranty  relates  to  the 
indentical  article  shipped  by  him,  and  affords  no  defense 
to  him  where  it  relates  only  to  a  constituent  used  by  him 
in  manufacturing  the  articles  shipped. 

In  United  States  vs.  779  Cases  of  Molasses,  the  Circuit 
Court  of  Appeals  for  the  Eighth  Circuit,  in  174  Federal 
325,  held  that  an  article  of  food  put  up  and  sold  in  cases 
bearing  labels  describing  the  contents  as  a  particular 
brand  of  molasses,  but  plainly  stating,  in  three  separate 
places,  that  the  product  is  a  compound  of  molasses  and 
corn  syrup,  and  also  containing  all  the  other  information 
required  by  the  Act  and  the  regulations  thereunder,  and 
which  article  is  in  fact  a  compound  of  molasses  and  com- 
mercial glucose,  is  not  adulterated  or  misbranded,  within 
the  meaning  of  the  Act,  it  being  shown  that  it  contains 
nothing  deleterious  to  health. 

To  the  same  effect  is  United  States  vs.  Boeckmann,  176 
Federal,  382,  where  it  was  held  that  a  food  product,  la- 
beled "Compound;  pure  comb  and  strained  honey  and 


Foods  and  Drugs.  6'2 


Q 


corn  syrup,"  is  not  misbranded,  within  the  meaning  of 
this  Act,  merely  because  the  percentage  of  corn  syrup 
in  the  compound  largely  exceeds  that  of  honey.  So,  also, 
in  the  case  of  United  States  vs.  68  Cases  of  Syrup,  172 
Federal,  781,  it  was  held  that  all  of  the  label  will  be  con- 
strued together,  and  that  construing  all  the  words  of 
the  bottle  labels  together,  the  same  meaning  was  intended 
as  in  the  labels  on  the  cases,  namely,  that  the  bottles  and 
the  boxes  contained  blended  maple  syrup.  That  case  con- 
tinues to  hold  that  the  Act  provides  that  an  article  which 
does  not  contain  any  added  poisonous  or  deleterious 
ingredients,  shall  not  be  adulterated  or  misbranded,  if 
labeled  so  as  to  plainly  indicate  that  it  is  a  compound 
imitation  or  blend,  and  the  word  "blend"  is  plainly 
stated  on  the  package,  which  term  shall  be  construed  to 
mean  a  mixture  of  like  substances,  not  excluding  harm- 
less coloring  or  flavoring  ingredients,  used  for  coloring- 
purposes  only. 

The  term  "offal,"  under  the  authority  of  United  States 
vs.  650  Cases  of  Tomato  Catsup,  166  Federal,  773,  does 
not  have  an  exact  legal  signification  to  make  it  equivalent 
to  "filthy,  decomposed,  or  putrid  vegetable  substance," 
as  used  in  the  Act,  and,  therefore,  that  a  libel  containing 
that  term  was  insufficient,  it  being  essential  that  the 
label  shall  set  forth  branding  and  facts  inconsistent  with 
the  Act.  The  Court  held,  in  United  States  vs.  50  Barrels 
of  Whiskey,  that  it  was  no  defense  to  proceedings  under 
this  Act  that  the  brand  was  placed  upon  the  packages  con- 
taining such  liquor  by  the  United  States  gauger,  upon 
information  received  from  the  distiller,  in  accordance 
with  the  usual  practice,  or  that  the  same  kind  of  liquor 
had,  for  a  number  of  years,  been  so  branded  and  sold 
under  such  brand,  to  the  knowledge  of  the  agents  and 
officers  of  the  United  States. 

This,  of  course,  is  a  statement  of  the  well  established 
rule  that  sovereignty  cannot  be  bound  by  the  omission  or 
commission  of  its  agents. 

The  same  case  held  that  a  preliminary  examination 
by  the  Department  of  Agriculture,  as  provided  for  in 
Section  4,  is  not  at  all  a  necessary  condition  precedent 
to  the  filing  of  a  libel  for  the  condemnation  of  the  product. 


624  Federal  Criminal  Law  Procedure. 

Judge  Cochran,  in  Savage  vs.  Scovell,  171  Federal,  566, 
in  passing  upon  the  objection  to  the  Kentucky  Pure  Food 
Law,  that  the  Federal  Pure  Food  Law  had  done  away 
with  the  Kentucky  Statute,  said: 

"It  is  questionable  whether  Congress  can  affect  a  State  inspection 
law,  simply  by  legislation  covering  the  same  subject — whether,  in 
order  to  do  so,  it  must  not  enact  legislation  under  Clause,  2,  Section  10, 
Article  I.,  of  the  Federal  Constitution,  expressly  revising  and  controll- 
ing same;  but,  this  apart,  the  two  laws  do  not  cover  the  same  terri- 
tory. The  Federal  law  merely  covers  the  subject  ot  adulteration  and 
misbranding.  The  State  law  has  nothing  to  do  with  either.  It  has  to 
do  with  the  subject  of  disclosing  the  ingredients  of  the  articles  cover- 
ed by  it.  Its  policy  is  to  compel  a  statement  of  ingredients,  so  that 
purchasers  thereof,  in  Kentucky,  may  know  exactly  what  they  are 
buying,  There  may  be  no  adulteration  or  misbranding — no  violation 
of  the  Federal  law,  and  yet  there  may  be  a  violation  of  the  State  law 
in  not  disclosing  the   ingredients." 


§  386a.  Decisions  Continued. — In  the  original  text  of 
Section  386  is  the  statement  that  it  is  not  thought  that 
the  law  was  intended  to  punish  for  the  sale  of  such 
articles  as  were  neither  deleterious  nor  poisonous.  Since 
the  text  was  written  the  Courts  have  passed  upon  this 
question  and  have  clearly  established  the  correctness  of 
that  position.  In  the  case  of  U.  S.  vs.  Johnson,  177  Fed- 
eral, 313,  Judge  Phillips  held  that  a  medical  prepara- 
tion cannot  be  said  to  be  misbranded  and  its  sale  or  ship- 
ment in  interstate  commerce  a  criminal  offense  under 
this  act  merely  because  of  a  misrepresentation  on  the 
label  as  to  its  curative  effect.  This  case  was  carried  to 
the  Supreme  Court  by  the  United  States  under  the  Act 
of  March  2,  1907,  34  Stats.  1246,  and  that  Court,  in  U. 
S.  vs.  Johnson,  221  U.  S.,  488,  affirmed  Judge  Phillips' 
decision  and  held  that  a  statement  on  the  labels  of 
bottles  of  medicine  that  the  contents  are  effective  as  a 
cure  for  cancer,  even  if  misleading,  is  not  covered  by  the 
statute.  To  the  same  effect  is^the  decision  in  the  case 
of  Lexington  Mill  &  Elevator  Co.  vs.  U.  S.,  202  Federal, 
615,  where  it  was  held  that  bleached  flour  must  be  in- 
jurious to  health  before  its  shipment  in  interstate  com- 
merce is  violative  of  this  statute.  Under  the  authority 
of  U.  S.  vs.  Hipolite  Egg  Co.,  220  U.  S.,  45,  the  Act  is 
construed  to  prevent  the  shipment  of  inhibited  articles, 


Foods  and  .Drugs.  625 

even  though  they  are  not  transported  for  sale  and  that 
Section  10  applies  not  only  to  the  article  itself,  but  to  all 
ingredients  thereof. 

Decomposed  canned  eggs  which  are  not  denatured  and 
therefore  can  be  used  either  for  food  or  tanning  pur- 
poses cannot  be  shipped  in  interstate  commerce  from  one 
warehouse  of  the  owner  to  another  without  violating  this 
law,  even  though  it  be  contended  that  the  owner  intend 
ed  that  they  should  be  used  only  for  tanning  purposes. 
U.  S.  vs.  13  Crates,  208  Federal,  950. 

Oysters,  although  shipped  unopened  and  as  taken 
from  the  water,  may  come  within  the  prohibitions  where, 
by  reason  of  the  condition  of  the  waters  in  which  they 
are  grown,  they  contain  harmful  bacteria  which  renders 
them  filthy,  decomposed  or  putrid,  and  therefore  adulter- 
ated within  the  meaning  of  subdivision  6  of  Section  7 
of  the  Act.    U.  S.  vs.  Sprague,  208  Federal,  419. 

A  sale  and  shipment  from  Ohio  to  Washington  of  a 
bottle  of  medicine  containing  cocaine,  without  a  label  in- 
dicting its  presence,  the  seller  knowing  when  he  solicited 
the  order  that  the  transaction,  if  completed,  would  neces- 
sitate interstate  transportation,  was  interstate  commerce, 
whether  the  sale  was  made  before  or  after  shipment, 
and  is  within  the  law.    U.  S.  vs.  Tucker,  188  Federal,  741. 

For  a  fact  case  on  lemon  extract,  see  U.  S.  vs.  Frank, 
189  Federal,  195. 

Sec.     386  a.  a.     Decisions  Continued. 

For  cases  on  civil  libel,  pepper,  U.  S.  vs.  Six  Barrels, 
253  F.  199;  insecticide,  Parke  Davis  vs.  U.  S.,  255  F.  933; 
Coco  cola  case,  U.  S.  vs.  Forty  Barrels,  U.  S.  Sup.  Ct. 
May,  1916;  candy,  U.  S.  vs.  Watson,  251  F.  310;  U.  S. 
vs.  Direct  Sales  Company,  252  F.  882. 

The  branding  must  be  both  false  and  fraudulent,  U. 
S.  vs.  Tuberclecide  Company,  252  F.  938;  Hall  vs.  U.  S., 
267  F.  795;  Bradley  vs.  U.  S.,  264  F.  79;  Weeks  vs.  U. 
S.,  February  1918,  U.  S.  Sup.  Ct. 

At  the  trial  other  offenses  may  be  proven,  when 
Mitchell  vs.  U.  S.,  229  F.  357. 

An  article  which  shows  by  the  label  to  be  unfit  is  not 
in  violation  of  the  statute,  U.  S.  vs.  W.  W.  Fishing  Com- 
pany, 224  F.  274. 

.      40 


626  Federal  Criminal  Law  Procedure. 

The  United  States  attorney  must  verify  his  libels  and 
a  notary  public  is  not  known  to  the  United  States  stat- 
utes, U.  S.  vs.  Schallinger,  230,  F.  290. 

The  food  and  drugs  act  is  constitutional,  Seven  Cases 
vs.  U.  S.,  U.  S.  Sup.  Ct.  October  Term,  1915. 

For  rules  as  to  determination  of  medical  opinion,  testi- 
monials and  misbranding  see  McLean  vs.  U.  S.,  253  F. 
694. 

For  a  definition  of  when  an  article  is  misbranded  see 
U.  S.  vs.  Schider,  U.  S.  Sup.  Ct.  April,  1918,  and  for  an 
indictment  for  misbranding  see  Simpson  vs.  U.  S.,  241 
F.  841. 

For  decisions  treating  of  the  curative  powers  of  reme- 
dies and  the  difference  between  remedies  and  cure  see 
U.  S.  vs.  Natura  Company,  250  F.  925;  Eleven  vs.  U. 
S.,  233  F.  71. 

For  treatment  of  motions  to  release  misbranded 
articles  and  the  holding  that  such  release  is  discretionary 
see  U.  S.  vs.  Two  Cans,  268  F.  866. 

False  representations  in  circulars  enclosed  within  the 
package  cannot  be  considered  as  violations  of  the  Food 
and  Drugs  act  of  June  30,  1906,  relating  to  misbranding, 
U.  S.  vs.  Newton,  275  F.  394. 

§  386b.  Misbranded  Under  New  Amendment. — By 
the  Act  of  August  23,  1912,  Section  8  of  the  original  Act 
was  so  amended  as  to  read  as  follows: 

"Sec.  8.  That  the  term  misbranded  as  used  herein,  shall  apply  to 
all  drugs  or  articles  of  food  or  articles  which  enter  into  the  composi- 
tion of  food,  the  package  or  label  of  which  shall  bear  any  statement, 
design  or  device  regarding  such  article,  or  the  ingredients  or  sub- 
stances contained  therein,  which  shall  be  false  or  misleading  in  any 
particular,  and  to  any  food  or  drug  product  which  is  falsely  branded 
as  to  the  State,  territory,  or  country  in  which  it  is  manufactured  or 
produced. 

"That  for  the  purpose  of  this  Act  an  article  shall  also  be  deemed  to 
be  misbranded.  In  case  of  drugs:  First.  If  it  be  an  imitation  of  or 
offered  for  sale  under  the  name  of  another  article.  Second.  If  the 
contents  of  the  package  as  originally  put  up  shall  have  removed,  in 
whole  or  in  part,  and  other  contnets  shall  have  been  placed  in  such 
package,  or  if  the  package  fail  to  bear  a  statement  on  the  label  of 
the  quantity  or  proportion  of  any  alcohol,  morphine,  opium,  cocaine, 
heroin,  alpha  or  beta  eucaine,  chloroform,  cannabis  indica,  chloral 
hydrate,  or  acetanilide  or  any  derivative  or  proportion  of  any  such  sub- 


Foods  and  Drugs.  627 

stance  contained  therein.  Third.  If  its  package  or  label  shall  bear  or 
contain  any  statement,  design  or  device  regarding  the  curatice  or 
therapeutic  effect  of  such  article  or  any  of  the  ingredients  or  substances 
contained  therein,  which  is  false  and  fraudulent."  (37  Stats.  L.  416, 
page  146,  1914  Fed.  Stats.  Ann.). 

In  the  case  of  U.  S.  vs.  American  Laboratories,  222  Fed- 
eral, 104,  it  was  held  that  Congress  had  the  power  to 
enact  this  Amendment. 

In  that  same  case  it  was  held  that  one  may  not  be  con- 
victed merely  because  he  advocates  a  theory  of  medicine 
which  at  the  time  has  not  received  the  sanction  of  the 
medical  profession,  but  one  guilty  of  fraud  may  not 
escape  conviction  merely  because  someone  may  honestly 
believe^  in  the  theory  which  he  fraudulently  sets  forth. 
A  difference  of  this  sort  is  one  of  fact  for  the  jury,  as 
is  also  the  charge  of  misbranding. 

On  March  3,  1913,  the  Congress  added  another  Amend- 
ment to  the  Act  of  1906  by  changing  the  original  third 
section  thereof  to  read  as  follows: 

"Sec.  3.  If  in  package  form  the  quantity  of  the  contents,  be  not 
plainly  and  conspiciously  marked  on  the  outside  of  the  package  in 
terms  of  weight,  measure  or  numerical  count;  provided,  however,  that 
reasonable  variations  shall  be  permitted  and  tolerances  and  also  ex- 
emptions as  to  small  packages  shall  be  established  by  rules  and  regula- 
tions made,  in  accordance  with  the  provisions  of  Section  3  of  this  Act." 
[37  Stats.  L.  732,  page  146,   1914  Fed.  Stats.  Ann.]. 

§  387.  Importation  of  Opium. — The  Act  of  February 
9,  1909,  Chapter  100,  35  Stat.  L.,  614,  reads  as  follows: 

"Sec.  1.  That  after  the  first  day  of  April,  ninteen  hundred  and 
nine,  it  shall  be  unlawful  to  import  into  the  United  States  opium  in 
any  form  or  any  preparation  or  derivative  thereof;  Provided,  That 
opium  and  preparations  and  derivatives  thereof,  other  than  smoking 
opium  or  opium  prepared  for  smoking,  may  be  imported  for  medicinal 
purposes  only,  under  regulations  which  the  Secretary  of  the  Treasury 
is  hereby  authorized  to  prescribe,  and  when  so  imported  shall  be  sub- 
ject to  the  duties  which  are  now  or  may  hereafter  be  imposed  by  law. 

"Sec.  2.  That  if  any  person  shall  fraudulently  or  knowingly  import 
or  bring  into  the  United  States  or  assist  in  so  doing,  any  opium  or 
any  preparation  or  derivative  thereof  contrary  to  law,  or  shall  receive, 
conceal,  buy,  sell,  or  in  any  manner  facilitate  the  transportation,  con- 
cealment, or  sale  of  such  opium  or  preparation  or  derivative  thereof 


J 


628  Federal  Criminal  Law  Procedure. 

after  importation,  knowing  the  same  to  have  been  imported  contrary 
to  law,  such  opium  or  preparation  or  derivative  thereof  shall  be  for- 
feited, and  shall  be  destroyed,  and  the  offender  shall  be  fined  in  any 
sum  not  exceeding  five  thousand  dollars  nor  less  than  fifty  dollars, 
or  by  imprisonment  for  any  time  not  exceeding  two  years,  or  both. 
Whenever,  on  trial  for  a  violation  of  this  section,  the  defendant  is 
shown  to  have,  or  to  have  had,  possession  of  such  opium  or  prepara- 
tion or  derivative  thereof,  such  possession  shall  be  deemed  sufficient 
evidence  to  authorize  conviction  unless  the  defendant  shall  explain 
the  possession  to  the  satisfaction  of  the  jury." 

§  387a.  Additional  Opium  Statutes. — The  Act  of  Jan. 
uary  17,  1914,  provided  that  "On  or  after  July  1,  1913, 
smoking  opium  or  opium  prepared  for  smoking,  found 
within  the  United  States  shall  be  presumed  to  have  been 
imported  after  the  1st  day  of  April,  1909,  and  the  bur- 
den of  proof  shall  be  on  the  claimant  or  the  accused  to 
rebut  such  presumption."  Sections  8800-8801f,  U.  S. 
Compiled  Statutes. 

Section  1  of  the  Act  of  January  17,  1914,  provides, 
"That  an  internal  revenue  tax  of  $300  per  pound  shall 
be  levied  and  collected  upon  all  opium  manufactured  in 
the  United  States  for  smoking  purposes;  and  no  person 
shall  engage  in  such  manufacture  who  is  not  a  citizen 
of  the  United  States  and  who  has  not  given  the  bond  re- 
quired by  the  Commissioner  of  Internal  Revenue.  Every 
person  who  prepares  opium  suitable  for  smoking  purposes 
from  crude  gum  opium,  or  from  any  preparation  thereof, 
or  from  the  residue  of  smoked  or  partially  smoked  opium 
commonly  known  as  yen  shee,  or  from  any  mixture  of 
the  above,  or  any  of  them,  shall  be  regarded  as  a  manu- 
facturer of  smoking  opium  within  the  meaning  of  this 
Act." 

Section  2  provides  certain  regulations  for  the  conduct 
of  the  business,  including  a  bond  in  the  sum  of  $1000. 

Section  3  provides  for  certain  stamps  that  shall  be 
placed  on  the  manufactured  product,  as  does  also  Sec- 
tion 4. 

Section  5  provides  as  follows:  "That  a  penalty  of 
not  less  than  ten  thousand  dollars  or  imprisonment  for 
not  less  than  five  years  or  both,  in  the  discretion  of  the 
Court,  shall  be  imposed  for  each  and  every  violation  of 


Foods  and  Drugs.  629 

the  preceding  sections  of  this  Act,  relating  to  opium  by 
any  person  or  persons;  and  all  opium  prepared  for  smok- 
ing wherever  found  within  the  United  States  without 
the  stamps  required  by  this  Act,  shall  be  forfeited  and 
destroyed. 

The  Circuit  Court  of  Appeals  in  Shelly  vs.  U.  S.,  198 
Federal,  88,  had  held  that  the  mere  mixing  of  smoking 
opium  with  the  residue  of  opium  that  has  been  smoked, 
and  heating  the  same,  was  not  a  manufacture  of  opium 
for  smoking  purposes,  within  the  meaning  of  the  inter- 
nal revenue  Act  of  1890  which  imposed  a  tax  on  smok- 
ing opium  and  regulated  the  business  of  its  manufac- 
ture. It  would  appear  that  Congress  answered  this  de- 
cision by  providing  the  Act  just  above  quoted  wherein 
it  is  said  that  the  preparation  of  opium  suitable  for 
smoking  purposes  from  crude  gum  opium  or  from  any 
preparation  thereof,  or  from  the  residue  of  smoked  or 
partially  smoked  opium,  etc.,  shall  be  regarded  as  a 
manufacture  within  the  meaning  of  the  Act. 

In  Marks  vs.  U.  S.,  196  Federal,  476,  it  was  held  under 
the  old  statute  that  any  process  by  which  crude  opium 
is  converted  into  a  product  fit  for  smoking  constitutes 
a  manufacture  of  smoking  opium,  but  the  limiting  of 
the  Marks  decision  by  the  Shelly  decision  made  the  new 
opium  Act  most  understandable  and  any  mixture  what- 
soever of  opium  which  may  be  smoked  will  now  be  con- 
sidered a  manufacture  thereof. 

Under  the  old  law  the  offense  of  illegal  importation 
was  committed  whenever  the  smoking  opium  was  fraud- 
ulently and  knowingly  brought  within  the  territorial 
limits  of  the  United  States,  although  the  opium  may  not 
have  been  landed  from  the  ship  or  carried  across  the 
custom  lines,  U.  S.  vs.  Caminata,  194  Federal,  903. 

§  387b.  These  Statutes  Constitutional.— The  Act  of 
1909,  and  the  Act  of  January  17,  1914,  which  declare 
certain  presumptions  against  the  defendant,  are  held 
to  be  constitutional  in  the  case  of  U.  S.  vs.  Yee  Fing, 
222  Federal,  154,  and  that  they  do  not  deny  due  process 
of  law,  provided  in  the  case  there  is  a  rational  connec- 
tion between  the  facts  proved  and  the  Facts  therefrom 


630  Federal  Criminal  Law  Procedure. 

inferred,  and  provided  the  party  affected  is  free  to  op- 
pose them. 

Sec.  387  b.  b.  Opium  Decisions. 

For  rule  of  construction  of  the  statutes  see  U.  S.  vs. 
Sischo,  262  F.  1001. 

For  an  invalid  indictment  against  Chinamen  and  of- 
fenses individual  see  Lee  vs.  U.  S.,  240  F.  408. 

For  many  questions  relating  to  prosecutions  under 
these  statutes  see  Lee  Lin  vs.  U.  S.,  250  F.  694. 

For  consumers  rights  see  U.  S.  vs.  "Woods,  224  F.  278. 

Possession  constitutes  the  offense  unless  the  possessor 
rebuts  the  presumption,  U.  S.  vs.  Johnson,  228  F.  251. 

Under  these  statutes  the  government  must  show  that 
the  commissioner  had  required  a  bond,  the  existence  of 
a  stamp,  etc.,  Chin  Sing  vs.  U.  S.,  227  F.  397. 

The  court  will  take  judicial  notice  that  opium  is  not 
grown  in  the  United  States,  U.  S.  vs.  Brown,  224  F.  135. 


CHAPTER  XXI. 

PANDERING  AND  PROHIBITING  IMMORAL  USE  OF  WOMEN  AND 

GIRLS. 

§  388.     The    Act    of    February    20,    1907,    Prohibiting    Importation    for 
Prostitution. 

389.  Decisions. 

389a.  Additional  Decisions. 

390.  Importing  Contract  Labor. 

391.  Pandering. 

392.  White  Slave  Act. 

392a. Decisions   Under  White  Slave  and   Pandering  Act. 
392b.  Harboring    Prostitutes   and   Making    Reports   Thereof. 

§  388.  The  Act  of  February  20,  1907,  34  Stat.  L., 
898,  contains  forty-four  sections,  relating  to  immigra- 
tion. It  prohibits  the  importing  of  women  for  prosti- 
tution, the  importing  of  contract  labor,  the  advertising 
for  labor  abroad,  the  soliciting  by  vessel  owners,  and  the 
illegal  landing  of  aliens.  Sections  3  and  4  of  the  Act  are 
the  ones  most  frequently  made  use  of  to  cleanse,  as  far 
as  possible,  the  stream  of  immigration.  Section  3  reads 
as  follows: 

"Sec.  3.  That  the  importation  into  the  United  States  of  any  alien 
woman  or  girl  for  the  purpose  of  prostitution,  or  for  any  other  im- 
moral purpose,  is  hereby  forbidden;  and  whoever  shall,  directly  or 
indirectly,  import,  or  attempt  to  import,  into  the  United  States,  any 
alien  woman  or  girl  for  the  purpose  of  prostitution,  or  for  any  other 
immoral  purpose,  or  whoever  shall  hold  or  attempt  to  hold  any  such 
woman  or  girl  for  any  such  purpose  in  pursuance  of  such  illegal  im- 
portation, or  whoever  shall  keep,  maintain,  control,  support,  or  harbor 
in  any  house  or  other  place,  for  the  purpose  of  prostitution,  or  for 
any  other  immoral  purpose,  any  alien  woman  or  girl,  within  three  years 
after  she  shall  have  entered  the  United  States,  shall,  in  every  such 
case,  be  deemed  guilty  of  a  felony,  and  on  conviction  thereof  be  im- 
prisoned not  more  than  five  years  and  pay  a  fine  of  not  more  than  five 
thousand  dollars;  and  any  alien  woman  or  girl  who  shall  be  found  an 
inmate  of  a  house  of  prostitution  or  practicing  prostitution,  at  any 
time  within  three  years  after  she  shall  have  entered  the  United  States, 
shall  be  deemed  to  be  unlawfully  within  the  United  States,  and  shall 
be  deported  as  provided  by  sections  twenty  and  twenty-one  of  this 
Act." 

(631) 


632  Federal  Criminal  Law  Procedure. 

§  389.  Decisions. — Judge  Hough,  in  United  States 
vs.  Bitty,  155  Federal,  938,  held  that  the  words  "any 
other  immoral  purpose,"  as  used  in  the  above  section 
must  be  construed  with  reference  to  the  preceding  word 
"prostitution,"  and  to  relate  only  to  a  like  immoral 
purpose,  and,  so  construed,  cannot  be  held  to  include 
concubinage;  and  he,  therefore,  sustained  a  demurrer  to 
the  indictment.  The  Government  went,  by  writ  of 
error,  direct  to  the  Supreme  Court  of  the  United  States, 
by  virtue  of  the  Act  of  March  2,  1907,  34  Stat.  L.,  1246, 
authorizing  writs  of  error  by  the  United  States,  and  the 
Supreme  Court  held,  in  United  States  vs.  Bitty,  208  U. 
S.,  393,  52  Law  Ed.,  544,  that  the  importation  of  an  alien 
woman  into  the  United  States  in  order  that  she  may 
live  with  the  person  importing  her,  as  his  concubine, 
is  for  an  immoral  purpose,  within  the  meaning  of  the 
above  section,  making  it  a  crime  against  the  Unitr 
States  to  import  alien  women  for  the  purpose  of  prosti- 
tution, or  for  any  other  immoral  purpose. 

In  Keller  vs.  United  States,  213  U.  S.,  138,  the  Su- 
preme Court  held  that  that  portion  of  the  above  section 
which  makes  it  a  felony  to  harbor  alien  prostitutes 
was  unconstitutional,  as  to  one  harboring  such  a  prost: 
tute  without  knowledge  of  her  alienage,  or  in  connection 
with  her  coming  into  the  United  States,  as  a  regulation 
of  a  matter  within  the  police  power  reserved  to  the  state, 
and  not  without  any  power  delegated  to  Congress  by  the 
Constitution.  The  portion,  therefore,  of  the  section  held 
to  be  unconstitutional  on  this  state  of  facts,  begins  at 
the  words  "whoever  shall  keep,"  and  ends  with  the 
words  "not  more  than  five  thousand  dollars." 

In  line  with  this  decision  was  the  case  of  ex  parte 
Lair,  177  Federal,  789,  which  held  that  in  so  far  as  the 
section  provides  for  the  criminal  punishment  of  th3 
mere  keeping  maintaining,  supporting,  or  harboring  an 
alien  woman  within  three  years  after  entry  for  the  pur- 
poses of  prostitution,  it  is  unconstitutional,  such  offense 
being  within  the  police  power  of  the  State,  and  not  sub- 
ject to  Congressional  regulation.  That  case  also  held 
that  the  Act  of  March  3,  1903,  32  Stat.  L.,  1214,  in  so 
far  as  it  places  no  limitation  on  the  length  of  the  hold- 


Pandering,  Etc.  633 

ing  of  a  female  alien  for  prostitution,  for  which  the 
holder  might  be  prosecuted,  was  repealed  by  the  Act 
under  discussion.  That  case  also  held  that  the  venue 
for  the  importing  of  a  female  for  immoral  purposes 
was  within  the  district  of  the  seaport  where  the  alien 
first  landed  and  entered  the  United  States.  In  the  case 
of  United  States  vs.  Sibray,  178  Federal,  144,  the  Court 
held,  upon  a  writ  of  habeas  corpus,  that  a  warrant  by 
an  immigration  inspector  under  the  Act,  which  author- 
izes the  inspectors  to  proceed  without  going  before  any 
other  United  States  Courts  or  United  States  Commis- 
sioner, while  not  required  to  have  the  formality  and 
particularity  of  an  indictment,  it  must,  in  charging  that 
the  relator  was  an  alien  who  was  a  member  of  the  ex- 
cluded class,  in  that  he  imported  a  woman  for  immoral 
purposes,  and  that  he  had  been  convicted  of,  or  had 
admitted,  having  committed  a  felony  or  other  crime  or 
misdemeanor  involving  moral  turpitude,  prior  to  his 
entry  into  the  United  States,  was  fatally  defective  for 
failure  to  specify  the  specific  act  or  acts  which  it  was 
claimed  brought  the  relator  within  the  excluded  classes.  In 
other  words,  the  decision  throughout  demands  that  such 
warrants  must  state  facts,  and  not  mere  conclusions. 
The  Court  also  held  that  proof  that  an  alien,  prior  to 
his  emigration,  committed  a  single  act  of  adultery  or 
fornication  in  the  country  from  which  he  came,  was  in- 
sufficient to  justify  his  deportation  as  an  alien  having 
been  convicted  of,  or  having  admitted,  committing  a 
felony  or  other  crime  or  misdemeanor  involving  moral 
turpitude;  also  that  an  alien  living  in  adultery  within 
the  United  States  is  not  ground  for  deportation;  such 
conduct  being  solely  within  the  police  power  of  the  stat- 
ute. See  also  United  States  vs.  Sibray,  178  Federal, 
150,  where  it  was  held  that  a  warrant  for  a  woman  stating 
generally  that  she  entered  the  United  States  for  an  im- 
moral purpose,  was  not  sufficiently  specific. 

§  389a.  Additional  Decisions  Under  Act  of  February 
20,  1907.— All  that  portion  of  Section  3  of  the  Act  of 
February  20,  1907,  reading  as  follows:  "Whoever  shall 
keep,  maintain,  control,  support,  or  harbor  in  any  house 
or  other  place  for  the  purpose  of  prostitution  or  for  any 


634  Federal  Criminal,  Law  Procedure. 

other  immoral  purpose,  any  alien  woman  or  girl,  with- 
in three  years  after  she  shall  have  entered  the  United 
States,  shall  in  every  such  case  be  deemed  guilty  of  a 
felony,  and  on  conviction  thereof  be  imprisoned  not  more 
than  five  years  and  pay  a  fine  of  not  more  than  $5,000," 
is  declared  to  be  unconstitutional  by  the  Supreme  Court 
of  the  United  States,  in  Jeller  vs.  U.  S.,  213  U.  S.  138. 
for  the  reason  that  while  Congress  has  power  to  exclude 
aliens  from  and  to  prescribe  the  terms  and  conditions 
on  which  aliens  may  come  into  the  United  States,  that 
power  does  not  extend  to  controlling  dealings  with  aliens 
after  their  arrival,  merely  on  account  of  their  alienage. 
That  portion  of  the  Act  of  February  20th,  quoted  above, 
is  unconstitutional  because  it  is  the  attempt  to  regu- 
late a  matter  within  the  police  power  reserved  to  the 
State,  and  not  within  any  power  delegated  to  Congress 
by  the  Constitution. 

'The  Act  of  March  26,  1910,  36th  Statute  264,  reads  as 
follows:  "Any  alien  who  shall  be  found  an  inmate  of  or 
connected  with  the  management  of  a  house  of  prostitu- 
tion, or  practicing  prostitution,    after    such    alien    shall 

have  entered  the  United  States shall  be  deemed  to 

be  unlawfully  within  the  United  States,  and  shall  be  de- 
ported in  the  manner  provided  by  Sections  20  and  21  of 
this  Act,"  thereby  doing  away  with  the  three  year  limi- 
tation of  time  provided  for  in  the  last  paragraph  of  th^ 
original  Section  3.  In  other  words,  when  an  alien  is  found 
engaged  in  the  inhibited  practices,  irrespective  of  the 
length  of  time  in  the  United  States,  deportation  may  be 
had.  U.  S.  vs.  Prentis,  182  Federal,  894;  U.  S.  vs.  Weis, 
181  Federal,  860. 

Under  the  authority  of  United  States  vs.  Lavoie,  182 
Federal,  943,  which  was  a  prosecution  under  the  first  part 
of  Section  3  for  importing  for  the  purpose  of  prostitu- 
tion an  alien  woman,  a  space  of  time  elapsing  after 
importation  of  as  much  as  two  years,  and  then  the  re- 
sumption of  illegal  relations,  such  illegal  relations  will 
not  be  held  to  be  pursuant  to  the  illegal  importation. 
Prosecution  for  illegal  importation  under  this  section 
should    be    had    in  the  district  of  the  port  where  the 


Pandering,  Etc.  635 

ailen  was  landed.     U.  S.  vs.  Krsteff,  185  Federal,  201; 
U.  S.  vs.  Lavoie,  182  Federal,  943. 

Sec.     389  b.     Additional  Decisions. 

Crossing  the  line  of  a  state  and  returning*  to  the  first 
state  with  the  girl  is  no  offense  under  the  authority  of 
Fisher  vs.  U.  S.,  266  F.  667  and  U..  S.  vs.  Wilson/ 266 
F.  712. 

The  indictment  may  fix  the  venue  by  -the  place  from 
which  transportation  was  made,  Yeates  vs.  U.  S.,  254  F.  60. 

An  indictment  which  charges  the  offense  in  the  lan- 
guage of  of  the  statute  is  held  good  in  Huffman  vs.  U.  S., 
259  F.  35;  also  in  the  case  of  U.  S.  vs.  Brand,  229  F.  847. 
In  the  case  of  Elrod  vs.  U.  S.,  266  F.  55,  it  was  held  that 
an  excursion  with  a  girl  from  one  state  to  another  where 
they  engaged  in  immoralities  was  sufficient  to  go  to  the 
jury  notwithstanding  there  were  no  commercial  relations 
between  the  parties. 

Venue  and  intent  are  regulated  by  the  inception  of  the 
journey,  Biggerstaff  vs.  U.  S.,  260  F.  926.  Appropriate 
instructions  should  be  given  as  to  the  purpose  of  the 
transportation,  Griffith  vs.  U.  S.,  261  F.  159;  as  to  ques- 
tions of  evidence,  etc.,  see  Blackstone  vs.  U.  S.,  261  F. 
150. 

An  indictment  saying  "purpose"  and  not  "intent" 
was  held  good  in  Carey  vs.  U.  S.,  265  F.  515. 

An  auto  driver  who  serves  men  and  women  carrying 
them  across  the  state  line  is  guilty  of  a  violation  of  this 
statute,  Freed  vs.  U.  S.  266  F.  1012;  auto  transportation 
is  a  violation,  Growling  vs.  U.  S.,  269  F.  215;  IT.  S.  vs. 
Burch,  226  F.  974.  The  instruction  of  the  court  should 
not  limit  the  government 's  duty  in  the  matter  of  showing 
inducement  and  if  it  does  do  so  it  will  be  reversable  error, 
England  vs.  U.  S.,  272  F.  102. 

The  woman  in  the  case  is  an  accomplice  and  it  is  the 
duty  of  the  court  to  charge  thereon,  was  held  in  Freed 
vs.  U.  S.,  266  F.  1012;  but  there  was  a  different  holding 
in  Hays  vs.  U.  S.,  231  F.  106. 

The  intent  and  purposes  must  be  specifically  alleged 
and  proven,  Gillette  vs.  U.  S.,  236  F.  215. 


636  Federal  Criminal  Law  Procedure. 

A  trip  for  immoral  purposes  alone,  which  is  in  inter- 
state commerce,  is  a  violation,  Caminetti  vs.  U.  S.,  U. 
S.  Sup.  Ct.  Nov.  1916. 

Though  the  defendant  accompanied  the  woman  when 
she  went  to  be  confined  it  would  not  necessarily  make 
him  guilty,  Van  Pelt  vs.  U.  S.,  240  F.  347. 

For  taking  a  negro  girl  see  Young  vs.  U.  S.,  242  F. 
788. 

In  a  prosecution  under  these  statutes  it  may  be  shown 
that  the  defendant  had  others  engage  in  prostitution 
Kinser  vs.  U.  S.,  231  F.  856. 

The  ignorance  of  the  girl  as  to  the  purpose  is  no 
defense,  Prdjun  vs.  U.  S.,  237  F.  799. 

For  a  case  where  co-conspirators  testified  for  the  state 
see  Heitler  vs.  IT.  S.,  244  F.  140. 

Inducing  one  to  go  from  one  state  to  another  state  to 
open  a  house  of  prostitution  is  a  violation,  Simpson  vs. 
U.  S.,  245  F.  278. 

Under  the  White  Slave  Act  the  offense  of  transporting 
a  woman  in  interstate  commerce  for  the  purpose  of  pros- 
titution is  complete  when  the  transportation  has  been 
accomplished  without  regard  to  whether  later  the  pur- 
pose is  accomplished;  one  cannot  be  convicted  for  aiding 
and  abetting  an  offense  of  which  he  had  no  knowledge 
until  after  it  was  complete,  Rizzo  vs.  U.  S.,  275  F.  51. 

Hiring  girls  in  the  United  States  to  go  to  Mexico  to 
work  in  a  dance  hall  where  liquors  are  sold  and  prosti- 
tutes are  waiters  is  a  violation,  Beyer  vs.  U.  S.,  251  F.  40. 

§  390.  Importing  Contract  Labor. — Section  4  of  the 
Act  reads  as  follows: 

"That  it  shall  be  a  misdemeanor  for  any  person,  company,  partner- 
ship, or  corporation,  in  any  manner  whatsoever,  to  prepay  the  trans- 
portation or  in  any  way  to  assist  or  encourage  the  importation  or  mi- 
gration of  any  contract  laborer  or  contract  laborers  into  the  United 
States,  unless  such  contract  laborer  or  contract  laborers  are  exempted 
under  the  terms  of  the  last  two  provisions  contained  in  section  two 
of  this  Act."   [34  Stat.  L.,  900.]. 

See  United  States  vs.  Tsokas,  163  Federal,  129. 
§  391.     Pandering.— The  Act  of  June  25,  1910,  to  de- 
fine and  punish  pandering,  reads  as  follows: 


Pandering,  Etc.  637 

"That  any  person  who,  by  threats  by  himself,  or  through  another, 
induces,  or  by  any  device  or  scheme  inveigles,  any  female  into  a 
house  of  prostitution,  or  of  assignation,  in  the  District  of  Columbia, 
against  her  will,  or  by  any  threat  or  duress  detains  her  against  her 
will,  for  the  purpose  of  prostitution  or  sexual  intercourse,  or  takes 
or  detains  a  female  against  her  will  with  intent  to  compel  her  by 
force,  threats,  menace,  or  duresS  to  marry  him,  or  to  marry  any  other 
person,  or  if  any  parent,  guardian,  or  other  person  having  legal  cus- 
tody of  the  person  of  a  female  consents  to  her  taking  or  detention  by 
any  person  for  the  purpose  of  prostitution  or  sexual  intercourse,  is 
guilty  of  pandering,  and  shall  be  punished  by  imprisonment  for  a 
term  of  not  less  than  one  nor  more  than  five  years  and  fined  not 
more  than  one  thousand  dollars. 

"Sec.  2.  That  any  person  who,  against  her  will,  shall  place  any 
female  in  the  charge  or  custody  of  any  other  person  or  persons  or  in 
a  house  of  prostitution  with  the  intent  that  she  shall  live  a  life  of 
prostitution,  or  any  person  who  shall  compel  any  female,  against  her 
will,  to  reside  with  him  or  with  any  other  person  for  the  purpose  of 
prostitution,  or  compel  her  against  her  will  to  live  a  life  of  prostitu- 
tion, is  guilty  of  pandering  and  shall  be  punished  by  a  fine  of  not 
less  than  one  thousand  dollars  and  imprisonment  for  not  less  than 
one  nor  more  than  five  years. 

"Sec.  3.  That  any  person  who  shall  receive  any  money  or  other  valu- 
able thing  for  or  on  account  of  procuring  for  or  placing  in  a  house  of 
prostitution  or  elsewhere  any  female  for  the  purpose  of  causing  her 
illegally  to  cohabit  with  any  male  person  or  persons  shall  be  guilty  of 
a  felony,  and  upon  convision  thereof  shall  be  imprisoned  for  not  less 
than  one  nor  more  than  five  years. 

"Sec.  4.  That  any  person  who  by  force,  fraud,  intimidation,  or 
threats  places  or  leaves,  or  procures  any  other  person  or  persons  to 
place  or  leave,  his  wife  in  a  house  or  prostitution,  or  to  lead  a  life 
of  prostitution,  shall  be  guilty  of  a  felony,  and  upon  conviction  thereof 
shall  be  imprisoned  not  less  than  one  nor  more  than  ten  years. 

"Sec.  5.  That  any  person  or  persons  who  attempt  to  detain  any  girl 
or  woman  in  a  disorderly  house  or  house  of  prostitution  because  of  any 
debt  or  debts  she  has  contracted,  or  is  said  to  have  contracted,  while 
living  in  said  house  of  prostitution  or  disorderly  house  shall  be  guilty 
of  a  felony,  and  on  conviction  thereof  be  imprisoned  for  a  term  not 
less  than  one  nor  more  than  five  years." 

Pandering  is  denned  by  the  Century  Dictionary  to 
mean  to  cater  for  the  lusts  of  others;  to  administer  to 
others'  passions  or  prejudices  for  selfish  ends;  to  pimp 
for;  one  who  administers  to  the  gratification  of  any  of 
the  baser  passions  of  others.  It  is  sometimes  written 
pandar,  formerly  pandor,  and  was  doubtless  taken  from 


638  Federal,  Criminal  Law  Procedure. 

the  name  of  a  man,  Pandare,  who  procured  for  Troilus 
the  love  and  good  grace  of  Cressida. 

§  292.  White  Slave  Act.— The  Act  of  June  25,  1910, 
entitled  an  Act  to  further  regulate  interstate  and  foreign 
commerce  by  prohibiting  the  transportation  therein  for 
immoral  purposes  of  women  and  girls,  and  for  other  pur- 
poses, was  directed  at  what  is  called  the  "White  Slave" 
evil,  and  as  far  as  it  relates  to  the  criminal  features,  is 
as  follows: 

"That  the  term  'interstate  commerce,'  as  used  in  this  Act,  shall 
include  transportation  from  any  State  or  Territory  or  the  District  of 
Columbia  to  any  other  State  or  Territory  or  District  of  Columbia,  and 
the  term  'foreign  commerce,'  as  used  in  this  Act,  shall  include  trans- 
portation from  any  State  or  Territory  or  the  District  of  Columbia  to 
any  foreign  country  and  from  any  foreign  country  to  any  State  or 
Territory  or   the  District  of  Columbia. 

"Sec.  2.  That  any  person  who  shall  knowingly  transport  or  cause 
to  be  transported,  or  aid  or  assist  in  obtaining  transportation  for,  or 
in  transporting,  in  interstate  or  foreign  commerce,  or  in  any  Territory 
or  in  the  District  of  Columbia,  any  woman  or  girl  for  the  purpose  of 
prostitution  or  debauchery,  or  for  any  other  immoral  purpose,  or  with 
the  intent  and  purpose  to  induce,  entice,  or  compel  such  woman  or  girl 
to  become  a  prostitute  or  to  give  herself  up  to  debauchery,  or  to 
engage  in  any  other  immoral  practice;  or  who  shall  knowingly  pro- 
cure or  obtain,  or  cause  to  be  procured  or  obtained,  or  aid  or  assist  in 
procuring  or  obtaining,  any  ticket  or  tickets,  or  any  form  of  trans- 
portation or  evidence  of  the  right  thereto,  to  be  used  by  any  woman  or 
girl  in  interstate  or  foreign  commerce,  or  in  any  Territory  or  the 
District  of  Columbia,  in  going  to  any  place  for  the  purpose  of  prosti- 
tution or  debauchery,  or  for  any  other  immoral  pui-pose,  or  with  the 
intent  or  purpose  on  the  part  of  such  person  to  induce,  entice,  or 
compel  her  to  give  herself  up  to  the  practice  of  prostitution,  or  to 
give  herself  up  to  debauchery,  or  any  other  immoral  practice,  whereby 
any  such  woman  or  girl  shall  be  transported  in  interstate  or  foreign 
commerce,  or  in  any  Territory  or  the  District  of  Columbia,  shall  be 
deemed  guilty  of  a  felony,  and  upon  conviction  thereof  shall  be  punished 
by  a  fine  not  exceeding  five  thousand  dollars,  or  by  imprisonment 
of  not  more  than  five  years,  or  by  both  such  fine  and  imprisonment 
in  the  discretion  of  the  court. 

"Sec.  3.  That  any  person  who  shall  knowingly  persuade,  induce, 
entice,  or  coerce,  or  cause  to  be  persuaded,  induced,  enticed,  or  co- 
erced, or  aid  or  assist  in  persuading,  inducing,  enticing,  or  coercing 
any  woman  or  girl  to  go  from  one  place  to  another  in  interstate  or 
foreign  commerce,  or  in  any  Territory  or  the  District  of  Columbia, 
for  the  purpose  of  prostitution  or  debauchery,  or  for  any  other  immoral 
purpose,  or  with  the  intent  and  purpose  on  the  part  of  such  person  thar 


Pandering,  Etc.  639 

such  woman  or  girl  shall  engage  in  the  practice  of  prostitution  or 
debauchery,  or  any  other  immoral  practice,  whether  with  or  without 
her  consent,  and  who  shall  thereby  knowingly  cause  or  aid  or  assist 
in  causing  such  woman  or  girl  to  go  and  to  be  carried  or  transported 
as  a  passenger  upon  the  line  or  route  of  any  common  carrier  or  car- 
riers in  interstate  or  foreign  commerce,  or  any  Territory  or  the  Dis- 
trict of  Columbia,  shall  be  deemed  guilty  of  a  felony,  and  on  con- 
viction thereof  shall  be  punished  by  a  fine  of  not  more  than  five, 
thousand  dollars,  or  by  imprisonment  for  a  term  not  exceeding  five 
years,  or  by  both  such  fine  and  imprisonment  in  the  discretion  of 
the  court. 

"Sec.  4.  That  any  person  who  shall  knowingly  persuade,  induce, 
entice,  or  coerce  any  woman  or  girl  under  the  age  of  eighteen  years 
from  any  State  or  Territory  or  the  District  of  Columbia,  with  the 
purpose  and  intent  to  induce  or  coerce  her,  or  that  she  shall  be  in- 
duced or  coerced  to  engage  in  prostitution  or  debauchery,  or  any  other 
immoral  practice,  and  shall  in  furtherance  of  such  purpose  knowingly 
induce  or  cause  her  to  go  and  to  be  carried  or  transported  as  a 
passenger  in  interstate  commerce  upon  the  line  or  route  of  any  common 
carrier  or  carriers,  shall  be  deemed  guilty  of  a  felony,  and  on  convic- 
tion thereof  shall  be  punished  by  a  fine  of  not  more  than  ten  thousand 
dollars,  or  by  imprisonment  for  a  term  not  exceeding  ten  years,  or  by 
both  such  fine  and  imprisonment,  in  the  discretion  of  the  court. 

"Sec.  5.  That  any  violation  of  any  of  the  above  sections  two,  three, 
and  four  shall  be  prosecuted  in  any  court  having  jurisdiction  of  crimes 
within  the  district  in  which  said  violation  was  committed,  or  from, 
through,  or  into  which  any  such  woman,  or  girl  may  have  been  car- 
ried or  transported  as  a  passenger  in  iterstate  or  foreign  commerce, 
or  in  any  Territory  or  the  District  of  Columbia,  contrary  to  the  pro- 
visions of  any  of  said  sections." 

§  392a.  Decisions  Under  White  Slave  and  Pandering 
Act. — The  legislation  is  constitutional.  U.  S.  vs.  Hoke, 
187  Federal,  992;  Hoke  vs.  U.  S.,  227  U.  S.,  308;  Kalen 
vs.  U.  S.,  196  Federal,  888;  Paulsen  vs.  U.  S.,  199  Federal, 
423;  Bennett  vs.  U.  S.,  194  Federal,  630;  affirmed  in  Ben- 
nett vs.  U.  S.,  227  U.  S.,  333.  The  right  to  be  transport- 
ed in  interstate  commerce  is  not  a  right  to  employ  inter- 
state transportation  as  a  facility  to  do  wrong,  and  the 
Congress  may  prohibit  such  transportation  to  the  extent 
of  the  White  Slave  Traffic  Act.  Hoke  vs.  U.  S.,  227  U. 
S.,  308.  One  may  violate  the  Act  through  a  third  party 
acting  for  him.  Hoke  vs.  U.  S.,  227,  309.  The  transporta- 
tion inhibited  by  the  Act  is  not  confined  to  transportation 
by  common  carrier,  nor  need  such  a  limitation  be  em- 
ployed in  order  to  sustain  the  constitutionality  of  the  Act. 


640  Federal  Criminal  Law  Procedure. 

Wilson  vs.  U.  S.,  232  U.  S.,  563.  The  debauchery  used 
in  the  statute  means  sexual  intercourse,  or  that  the  Act 
does  not  extend  to  any  vice  or  immorality  other  than 
that  applicable  to  sexual  actions.  Athanasaw  vs.  U. 
S.,  227  U.  S.,  326.  The  woman  is  an  accomplice,  Diggs 
vs.  U.  S.,  220  Federal,  546.  The  woman  who  is  the  victim 
niay  be  indicted  for  a  conspiracy  to  act  as  such  victim. 
U.  S.  vs.  Holte,  236  U.  S.,  140.  This  holding  opens  a 
new  method  for  rendering  prosecutions  futile,  because 
if  the  woman  may  be  indicted  she  may  claim  her  con- 
stitutional privilege  not  to  testify,  and  thereby  the  pro- 
secution will  be  deprived  of  the  one  who  is  most  often 
its  most  valuable  witness.  The  old  rule  that  the  spouse 
cannot  testify  against  the  husband  unless  it  relate  to 
injuries  to  herself,  is  recognized  by  the  Courts  in  cases 
under  this  statute,  and  it  is  held  that  where  a  husband 
persuades  his  wife  to  go  from  one  State  to  another  for 
the  immoral  purpose  of  the  Act  she  may  testify  against 
him,  because  such  a  transaction  is  a  personal  injury  to 
her  person.  U.  S.  vs.  Rispoli,  189  Federal,  271;  U.  S. 
vs.  Gwynne,  209  Federal,  993.  The  exception,  therefore, 
which  permits  a  wife  to  testify  against  her  husband  as 
to  injuries  received  to  her  own  person  only,  allows  such 
testimony  when  the  offense  was  committed  at  the  time 
that  she  was  in  fact  his  wife.  In  other  words,  the  wife 
would  not  be  permitted  to  testify  against  'her  husband 
to  facts  or  injuries  to  her  person  that  occurred  before 
she  became  his  wife.  One  who  transported  a  woman 
in  interstate  commerce  in  violation  of  the  section  under 
discussion,  and  after  such  violation  married  her,  would 
thereby  protect  himself  against  her  testimony,  because 
the  offense  against  her  person  occurred  when  she  was 
not  his  wife,  and  having  become  his  wife,  she  is  prevent- 
ed from  disclosing  anything  to  his  deteriment,  except 
such  as  would  detail  an  injury  to  her  when  she  was  his 
wife.  U.  S.  vs.  Gwynne,  209  Federal,  994.  The  exception 
deals  with  the  parties  in  the  marriage  relation  and  not  as 
to  acts  ommitted  before  the  marriage.  Public  policy 
is  the  basis  of  the  rule  and  the  relaxation  of  the  rule 
grows  out  of  the  necessity  of  protecting  the  wife  from 
personal  or  other  injury  at  the  hands  of  the  husband 


Pandering,  Etc.  641 

during  the  marital  relation.  Against  this  reasoning, 
however,  is  the  case  of  Johnson  vs.  U.  S.,  221  Federal, 
250,  which  is  a  ranking  case  since  it  is  by  the  C.  C.  A. 
8th  Circuit  and  holds  to  the  old  common-law  rule  that 
wife  cannot  testify  against  her  husband.  Reverses  215 
Federal,  679. 

A  trip  made  from  one  State  to  another  for  the  purpose 
of  illicit  cohabitation  is  in  violation   of  this  Act.     U. 

5.  vs.  Flashpoller,  205  Federal,  1006.  Diggs  vs.  U.  S., 
220  Federal,  545.  Witnesses  testifying  are  liable  to  all 
of  the  usual  tests  for  veracity,  such  as  lack  of  virtue, 
etc.  Filasto  vs.  U.  S.,  211  Federal,  329.  One  may  be 
sentenced  after  conviction  under  this  statute  in  a  pen- 
itentiary for  a  longer  or  shorter  period  than  one  year. 
U.  S.  vs.  Thompson,  202  Federal,  346.  For  other  fact 
cases,  see  Weddel  vs.  U.  S.,  213  Federal,  208;  Johnson 
vs.  U.  S.,  215  Federal,  679;  Harris  vs.  U.  S.,  194  Federal, 
634;  affirmed  in  227  U.  S.  340;  Bennett  vs.  U.  S.,  194 
Federal,  630;  affirmed  in  227  U.  S.,  333.     Suslak  vs.  U. 

6,  213  Federal,  913;  Welsch  vs.  U.  S.,  220  Federal,  764. 
Sec.     392  a.  a.     Decisions  Permitting  Wife  to  Testify, 

Continued. 

Under  section  392  a.  there  is  a  discussion  of  the  rule 
with  respect  to  a  wife  testifying  against  her  husband 
during  a  prosecution  under  these  statutes  when  she  is 
the  woman  in  the  case.  In  that  discussion  the  Johnson 
case,  221  F.  250,  is  cited.  That  case  is  criticised  in  Pap- 
pas  vs.  U.  S.,  241  F.  665,  by  the  Circuit  Court  of  Appeals 
for  the  ninth  circuit  and  the  doctrine  is  laid  down  that 
the  wife  may  testify  against  her  husband  on  the  ground 
that  such  a  transaction  is  a  personal  injury  to  her  and 
cites  their  former  decision  in  Cohen  vs.  U.  S.,  214  F. 
23,  to  the  same  effect,  from  which  a  certiorari  was  denied 
by  the  Supreme  Court,  235  U.  S.,  696,  35  Sup.  Ct.  Rep.  199. 

To  the  same  effect  is  Denning  vs.  U.  S.,  247  F.  463; 
U.  S.  vs.  Bozeman,  236  F.  432,  and  235  U.  S.  696. 

So  the  rule  seems  to  stand  as  announced  by  the  writer 
in  1910,  in  Sec.  392  a,  that  the  wife  may  testify  to  what 
occurred  while  she  was  the  wife  but  cannot  testify  to 
what  occurred  before  she  was  the  wife. 

41 


642  Federal  Criminal  Law  Procedure. 

§  392b.  Harboring  Prostitutes  and  Making  Reports 
Thereof. — The  statement  required  by  the  Act  of  June 
25,  1910,  to  be  made  to  the  Commissioner  General  of  Im- 
migration, giving  certain  facts  with  reference  to  alien 
females  held  for  immoral  purposes,  requires  the  making 
of  such  statements  only  when  such  females  are  from  the 
countries  who  are  parties  to  the  arrangement  to  file  such 
statement,  and  an  indictment  which  failed  to  show  that 
a  female  so  harbored  is  from  one  of  such  countries  is 
fatally  defective.  U.  S.  vs.  Davin,  189  Federal,  244. 
If  one  violates  the  provisions  of  this  Act  he  is  guilty 
thereunder,  even  though  he  is  not  also  guilty  of  pro- 
curing the  entry  of  such  female  into  the  United  States. 
U.  S.  vs.  Davin,  189  Federal,  244.  See  also  same  case 
for  form  of  indictment.  The  doctrine  that  one  must  file 
this  statement  even  though  such  person  did  not  import 
the  alien  female,  directly  or  indirectly,  is  affirmed  in  the 
case  of  U.  S.  vs.  Portale,  U.  S.,  Supreme  Court,  Oct.  Term, 
1914,  page  1. 

Sec.  392  b.  b.  Harboring  Prostitutes  and  Making  Re- 
ports Thereof,  Continued. 

The  section  with  reference  to  the  making  of  reports 
is  unconstitutional  and  is  in  violation  of  section  6,  of 
article  5,  U.  S.  vs.  Lombardo,  228  F.  980.  The  venue  for 
prosecution  under  the  foreign  provision  is  at  Washing- 
ton, D.  C.  the  place  where  the  "filing"  is  required,  TJ. 
S.  vs.  Lombardo,  228  F.  980;  affirmed  in  U.  S.  vs.  Lom- 
bardo, 241  U.  S.  73. 


CHAPTER  XXII. 

SOME  GENERAL  PROVISIONS. 

§  393.  Punishment   of   Death   by   Hanging. 

394.  No  Conviction  to  Work  Corruption  of  Blood  or  Forfeiture  of 
Estate. 

395.  Whipping  and   the   Pillory   Abolished. 

396.  Jurisdiction  of  State  Courts. 

397.  Ilustrations. 

398.  Other  Decisions. 

399.  Pardoning   Power. 

399a.  Pardon,   Acceptance    of    and    President's    Power. 

400.  Qualified  Verdicts  in  Certain  Cases. 

401.  Body  of  Executed   Offender  May  be  Delivered   to  Surgeon  for 

Dissection. 

402.  Who  Are  Principals. 
402a.  Aiding   and    Abetting. 

403.  Punishment    of   Accessories. 

404.  Felonies  and  Misdemeanors. 

405     Omission   of   Words,    "Hard    Labor"    Not    to    Deprive   Court   of 

Power  to   Impose. 
405a.  Imprisonment,  and  Where. 

406.  Repealing  Provisions. 

407.  Parole  of  United  States  Prisoners. 
407a.  For   Construction   of   Parole   Act. 

408.  Witnesses   for   Poor   Accused. 

409.  Publicity    of    Contributions. 

§  393.  Punishment  of  Death  by  Hanging.— Section 
323  of  the  new  Code,  is  in  the  exact  word  of  old  Statute 
5325,  to  wit: 

"Sec.  323.  The  manner  of  inflicting  the  punishment  of  death  shall 
be  by  hanging." 

Sec.     393   a.     Punishment,   etc. 

Punishment  for  "unreasonable  charge"  is  not  permit- 
ted, U.  S.  vs.  Cohen  Grocery  Company,  41  Sup.  Ct.  300, 
April,  1921. 

§  394.  No  Conviction  to  Work  Corruption  of  Blood 
or  Forfeiture  of  Estate. — Section  324  of  the  new  Code 
is  in  the  identical  words  of  the  old  Statute  5326,  as  fol- 
lows: 

"Sec.  324.  No  conviction  or  judgment  shall  work  corruption  of 
blood   or  any  forfeiture  of  estate." 

(643) 


644  Federal  Criminal  Law  Procedure. 

In  England,  felony  comprises  every  species  of  crime 
which  at  Common-Law  worked  a  forfeiture  of  goods  and 
lands. 

§  395.  Whipping  and  the  Pillory  Abolished, — Section 
325  of  the  new  Code  uses  the  words  of  old  Statute  5327, 
as  follows: 

"Sec.    325.     The    punishment    of   whipping   and    of    standing   in    the 
pillory  shall  not  be  inflicted." 

§  396.  Jurisdiction  of  State  Courts. — Section  326  of 
the  new  Code  uses  the  words  of  the  old  Statute  5328,  as 
follows: 

"Sec.  326.  Nothing  in  this  Title  shall  be  held  to  take  away  or  im- 
pair the  jurisdiction  of  the  courts  of  the  several  States  under  the 
laws  thereof." 

The  word  "Title"  used  in  the  above  section  must  neces- 
sarily mean  all  of  the  sections  in  the  new  Code;  that  is, 
from  Section  1  to  Section  325,  inclusive.  It  could  not  be 
limited  to  the  few  sections  in  Chapter  XIV.  of  the  new 
Code,  which  treats  alone  of  general  and  special  provi- 
sions. 

Decisions. — The  effort  of  the  Courts  to  maintain  the 
sovereignty  of  the  Federal  and  State  Governments  with- 
out impingement  from  either  side  have  been  both  com- 
mendable and  successful.  It  is  true  that  at  times  the 
line  has  been  difficult  to  trace,  and  conflict  seemed  im- 
minent, but  careful  reasoning  and  a  thorough  determina- 
tion to  preserve  the  autonomy  and  virgin  jurisdiction 
of  each  Government  have  usually  triumphed.  Even  the 
Supreme  Court  of  the  United  States  has  not  hesitated  to 
distinguish  its  own  decisions  so  as  to  keep  the  line  as 
distinct  as  possible.  In  the  case  of  New  York  vs.  Eno, 
155  U.  S.,  page  89,  hereinafter  noticed,  it  became  neces- 
sary for  the  preservation  of  the  State  lines  to  distinguish 
in  re  Loney,  134  U.  S.,  372,  and  the  Court  did  so  by  an- 
nouncing that  the  Loney  decision  was  one  of  urgency, 
which  involved  the  authority  and  operation  of  the  general 
Government. 

It  may  be  announced  as  the  general  rule,  gathered  from 
the  decisions,  that  where  there  is  an  apparent  conflict  of 


Some  General  Provisions  645 

authority,  and  the  State  Court  secures  jurisdiction  of 
the  person,  that  person  must  exhaust  all  State  remedies 
before  appealing  to  the  Federal  Courts  for  relief.  If, 
however,  as  in  the  Loney  case,  immediate  action  is  ur- 
gent, not  to  the  interests  of  the  person,  but  to  the  in- 
terests of  the  general  Government,  then  and  in  that  event 
the  Courts  of  the  general  Government  will  interfere  be- 
fore all  State  remedies  have  been  exhausted.  So,  too, 
if  Congress  has  taken  exclusive  jurisdiction  of  an  offense 
interference  by  similar  prosecutions  in  the  State  Courts 
are  not  permitted. 

Sec.  396  a.  Jurisdiction  of  State  Courts  in  Conflict 
With  Federal  Courts. 

For  a  discussion  of  the  two  sovereignties  see  Easton 
vs.  The  State,  188  U.  S.,  220;  47  Law  Ed.  452. 

As  to  "comity"  between  the  two  sovereignties  see  U. 
S.  vs.  Marrin,  227  F.  314. 

A  defendant  under  sentence  in  a  state  court  and  at 
large  on  bail  may  be  tried  and  convicted  in  the  federal 
court,  U.  S.  vs.  Vane,  254  F.  28. 

The  power  of  the  United  States  Supreme  Court  to  re- 
view state  court  decisions  is  limited  to  federal  questions, 
Cincinnati  vs.  Kentucky,  U.  S.  Sup.  Ct.  April  1920. 

An  acquittal  in  a  state  court  is  no  defense  nor  evidence 
in  the  federal  Court,  Martin  vs.  U.  S.,  271  F.  685. 

The  removal  of  internal  revenue  cases  to  the  federal 
courts  under  the  authority  of  section  643  R.  S.  U.  S.  does 
not  authorize  the  removal  of  a  case  against  a  party  who 
had  the  approval  of  the  United  States  Internal  Revenue 
Commissioner  to  sue,  Shumpka,  268  F.  686. 

Violations  of  the  Volstead  Act  may  be  prosecuted  in 
both  state  and  federal  courts  but,  U.  S.  vs.  Reagan,  273 
F.  727. 

It  was  held  in  ex  parte  Crook  shank,  269  F.  980,  that 
the  state  may  legislate  more  drastically,  but  not  more 
liberally  than  Congress  on  the  same  subject,  the  subject 
being  the  Volstead  Act;  see  also  270  F.  639  and  270  F.  665. 

§  397.  Illustrations. — In  the  case  of  Cross  vs.  North 
Carolina,  132  U.  S.,  140,  33  Law  Ed.,  287,  the  Supreme 
Court  held  that  where  an  officer  of  a  national  bank  forged 
a  promissory  note  and  entered  it  upon  the  books  of  the 


646  Federal  Criminal.  Law  Procedure. 

bank  for  the  purpose  of  sustaining  false  entries  in  the 
books  and  in  order  to  deceive  the  United  States  Bank 
Examiner,  he  could  be  tried  and  convicted  of  forgery  of 
the  note  in  the  State  Court  although  the  offense  of  mak- 
ing such  false  entries  is  one  against  the  United  States, 
of  which  its  Courts  have  exclusive  cognizance.  In  other 
[words,  the  crime  of  forgery  against  the  State  could  not 
'be  excused  or  obliterated  by  committing  another  and 
distinct  crime  against  the  United  States;  and  the  act, 
or  series  of  acts,  constituting  an  offense  equally  against 
the  United  States  and  the  State,  subjects  the  guilty  party 
to  punishment  under  the  laws  of  each  Government.  In 
Thomas  vs.  Loney,  134  U.  S.,  377,  33  Law  Ed.,  949,  the 
Supreme  Court  of  the  United  States  discharged,  upon 
habeas  corpus,  applicant  Loney  from  imprisonment  under 
a  warrant  of  arrest  from  a  justice  of  the  peace  of  Vir- 
ginia, upon  a  complaint  charging  him  with  perjury  in 
giving  his  deposition  as  a  witness  before  a  notary  public 
of  the  city  of  Richmond,  in  the  case  of  a  contested  elec- 
tion of  a  member  of  the  House  of  Representatives  of  the 
United  States,  and  held,  in  substance,  that  the  notary 
public  designated  by  Congress  to  take  depositions  in  case 
of  a  contested  election  of  a  member  of  the  House  of 
Representatives  of  the  United  States,  performs  this  func- 
tion under  the  authority  of  Congress,  and  not  under  that 
of  the  State,  and  testimony  taken  in  such  a  case  stands 
on  the  same  ground  as  if  taken  before  a  judge  or  officer 
of  the  United  States,  and  a  witness  giving  his  testimony 
in  such  a  case  is  accountable  for  the  truth  of  his  testi- 
mony to  the  United  States  only,  and  the  power  to  punish 
such  witness  belongs  exclusively  to  the  Government  in 
whose  tribunals  that  proceeding  is  had. 

This  case  affirms  the  same  case  in  38  Federal,  101.  In 
the  same  report,  on  page  380,  33  Law  Ed.,  951,  in  the 
case  of  Fitzgerald  vs.  Green,  the  Supreme  Court  reversed 
the  decision  of  the  Circuit  Court  of  the  United  States, 
discharging  upon  habeas  corpus  Green  from  imprison- 
ment under  a  judgment  of  the  Court  of  Virginia,  impos- 
ed upon  him  for  unlawfully  voting  for  presidential  elec- 
tors, and  held,  in  substance,  that  the  State  has  the  power 
to  punish  for  illegal  and  fraudulent  voting  for  presi- 


Some  General  Provisions  647 

dential  electors,  because  Congress  lias  never  undertaken 
to  interfere  with  the  manner  of  appointing  electors,  or 
the  mode  of  appointment  prescribed  by  the  law  of  the 
State  to  regulate  the  conduct  of  such  election,  or  to  punish 
any  fraud  in  voting  for  electors,  but  has  left  these  mat- 
ters to  the  control  of  the  States. 

In  McPherson  vs.  Blacker,  146  U.  S.,  page  1;  36  Law 
Ed.,  page  869,  the  Supreme  Court  of  the  United  States 
maintained  its  right,  under  Section  709  of  the  Revised 
Statutes  of  the  United  States,  to  inquire  into  the  method, 
upon  proper  petition,  pursued  by  a  State  in  the  selec- 
tion of  its  presidential  electors;  and  after  so  maintain- 
ing its  jurisdiction,  determined  that  the  Constitution  did 
not  provide  that  the  appointment  of  electors  shall  be  by 
popular  vote,  nor  that  the  electors  shall  be  voted  for 
upon  a  general  ticket,  nor  that  the  majority  of  those 
who  exercise  the  elective  franchise  can  alone  choose  the 
electors,  and  that  the  appointment  and  mode  of  appoint- 
ment of  the  electors  was  exclusively  left  to  the  States 
under  the  Constitution  of  the  United  States,  and  upheld 
the  Michigan  Act,  even  though  the  same  was  questioned 
as  being  repugnant  to  the  Constitution  of  the  United 
States. 

In  Pettibone  vs.  United  States,  148  U.  S.,  197,  37  Law 
Ed.,  419,  the  Supreme  Court  held  that  persons  cannot 
be  convicted  of  obstructing  the  administration  of  justice 
in  a  Federal  Court  under  United  States  Revised  Statute 
5399,  because  of  a  criminal  intent  on  their  part  to  commit 
a  crime  against  the  State,  in  the  deciding  of  which  the 
Court  affirmed  the  doctrine  that  United  States  Courts 
have  no  jurisdiction  over  offenses  not  made  punishable 
by  the  Constitution,  laws,  or  treaties  of  the  United  States. 

In  the  case  of  Ohio  vs.  Brooks,  173  U.  S.,  page  299, 
43  Law  Ed.,  page  699,  the  Supreme  Court  discharged, 
upon  habeas  corpus,  Thomas,  who  was  the  Superintendent 
of  the  United  States  Soldiers'  Home,  and  who  had  been 
convicted  in  the  State  Court  for  serving  oleogarmarine 
in  violation  of  the  State  law,  to  disabled  soldiers  under 
his  charge  at  the  said  home,  and  held  that  the  Governor 
of  a  Soldiers'  Home,  which  is  under  the  sole  jurisdiction 
of  Congress,  even  though  jurisdiction  has  not  been  ceded 


648  Federal  Criminal  Law  Procedure. 

to  the  land  upon  which  the  home  is  situated  by  the 
State  Legislature,  is  not  subject  to  the  State  Law  con- 
cerning the  use  of  oleomargarine  when  he  furnishes  that 
article  to  the  inmates  of  the  home,  as  a  part  of  the  rations 
furnished  for  them  under  appropriations  made  by  Con- 
gress therefor. 

United  States  vs.  Eno,  155  U.  S.,  page  89,  39  Law 
Ed.,  page  80,  arose  upon  a  writ  or  habeas  corpus  sued 
out  by  Eno,  who  alleged  that  he  was  in  the  city  prison 
of  New  York  City,  by  reason  of  certain  bench  warrants 
issued  upon  indictment  against  him  in  a  State  Court 
of  New  York  for  certain  offenses  over  which  the  State 
Courts  had  no  jurisdiction;  such  offenses  being  the  mak- 
ing of  false  entries  in  the  books  of  a  national  bank. 
He  was  discharged  by  the  Circuit  Court  of  the  United 
States,  and  the  State  of  New  York  appealed  to  the  Su- 
preme Court,  which  Court  reversed  the  judgment  of 
the  Circuit  Court  of  the  United  States,  and  held,  in  sub- 
stance, that  the  Circuit  Court  of  the  United  States  should 
not,  except  in  cases  of  urgency,  discharge  upon  habeas 
corpus  from  custody  under  warrants  issued  by  a  State 
Court,  one  charged  with  the  offense  committed  while 
president  of  a  national  bank,  of  forgery  by  making  false 
entries  in  the  books  of  the  bank,  with  intent  to  defraud, 
where  he  is  not  indicted  in  any  Court  of  the  United 
States  for  such  offense.  The  claim  of  the  accused  to 
immunity  from  prosecution  under  the  State  Court  should 
be  first  passed  upon  by  the  highest  Court  of  the  State; 
and  if  any  Federal  right  is  denied  him,  he  may  then  take 
the  case  to  the  Supreme  Court  of  the  United  States  for 
redress. 

In  referring  to  the  Loney  case,  134  U.  S.,  cited  supra, 
the  Court  said: 

"It  may  be  well  to  refer  to  the  case  of  Thomas  vs.  Loney,  134  U.  S. 
It  will  be  observed  that  this  Court,  in  ex  parte  Royall,  recognized  cer- 
tain cases  as  constituting  exceptions  to  the  general  rule — among  which 
are  cases  of  urgency,  involving  the  authority  and  operations  of  the 
general  government.  Loney's  case  was  of  that  class.  It  appeared  from 
the  record  that  he  was  duly  summoned  to  give  his  deposition  in  a 
contested  election  case,  pending  in  the  House  of  Representatives  of 
the  Congress  of  the  United  States — a  summons  he  was  obliged  to  obey, 
unless  prevented  by  sickness  or  unavoidable  accident,  under  the  penalty 


Some  General  Provisions  019 

of  forfeiting  a  named  sum  to  the  party  at  whose  instance  he  was  sum- 
moned, and  of  becoming  subject  to  fine  and  imprisonment,  that  he 
appeared  before  a  notary  public  in  obedience  to  such  summons,  and 
proceeded  to  give  his  deposition;  and  that  while  in  the  office  of  an 
attorney,  for  the  purpose  of  completing  his  testimony,  he  was  ar- 
rested under  a  warrrant  issued  by  a  justice  of  the  peace  based  upon 
the  affidavit  of  one  of  the  parties  in  the  contested  election  case,  charg- 
ing him   with   wilful  perjury,   committed   in   his  deposition It   is 

clear  from  this  statement  that  that  case  was  one  of  urgency,  involving, 
in  a  substantial  sense,  the  authority  and  operations  of  the  general 
Government." 

Exclusive  Jurisdiction  of  the  United  States. — It  will 
be  well,  in  considering  this  line  of  decisions,  and  ofttiines 
in  viewing  just  where  the  jurisdiction  of  the  State  Court 
ends  and  the  jurisdiction  of  the  Federal  Court  begins, 
and  just  where  the  Federal  Court  will  exercise  exclusive 
jurisdiction,  to  bear  in  mind  Section  711  of  the  Revised 
Statutes  of  the  United  States;  wherein  the  Courts  of  the 
United  States  are  given  exclusive  jurisdiction  over  such 
matters  as  are  therein  named,  to  wit;  all  crimes  and  of- 
fenses cognizable  under  the  authority  of  the  laws  of 
the  United  States;  all  suits  for  penalties  and  forfeitures 
incurred  under  the  laws  of  the  United  States;  all  civil 
cases  of  admiralty  and  maritime  jurisdiction;  all  seizures 
under  the  laws  of  the  United  States  on  land  or  on  sea; 
all  cases  arising  under  the  patent-right  or  copy-right 
laws  of  the  United  States;  all  matters  and  proceedings 
in  bankruptcy;  all  controversies  of  a  civil  nature,  where 
a  State  is  a  party,  except  between  a  State  and  its  citi- 
zens, or  between  a  State  and  citizens  of  other  States  or 
aliens;  and  all  suits  or  proceedings  against  ambassadors 
or  other  public  ministers  or  their  servants,  or  against 
consuls  or  vice  consuls.    See  Hopkins  Judicial  Code,  1911. 

§  398.  Other  Decisions. — In  United  States  vs.  Lackey. 
99  Federal,  952,  which  was  a  case  arising  upon  prosecu- 
tion for  alleged  violations  of  Section  5507  and  5508, 
growing  out  of  indictments  for  alleged  interference  with 
the  rights  secured  by  the  Fifteenth  Amendment,  the 
Court  held  that  neither  the  Fifteenth  Amendment,  nor 
the  statutes  enacted  for  its  enforcement,  were  intended 
in  any  primary  sense,  to  protect  any  right  or  interest  of 
the  United  States,  and  the  fact  that  the  national  Govern- 


650  Federal  Criminal  Law  Procedure. 

ment  had  no  direct  interest  in  an  election  does  not  affect 
the  applicability  of  such  statutes,  or  constitute  a  defense 
to  an  indictment  for  their  violation  in  connection  with 
such  election.  In  other  words,  this  decision  holds,  and 
it  seems  to  be  the  law,  that  one  may  be  prosecuted  in 
the  Federal  Courts  for  a  violation  of  the  acts  of  Congress 
which  are  made  to  give  life  to  the  Fifteenth  Amendment, 
even  though  the  rights  interfered  with  under  the  Fifteenth 
Amendment  were  civil  rights  under  the  State. 

In  in  re  Welch,  57  Federal,  576,  Circuit  Judge  La- 
combe  held  that  the  question  as  to  whether  the  State 
Court  has  jurisdiction  over  a  pilot  indicted  for  man- 
slaughter, in  causing  the  death  of  another  person  on 
another  boat,  by  causing  the  boat  in  his  charge  to  collide 
therewith,  cannot  be  raised  by  an  application  for  a  writ 
of  habeas  corpus,  when  the  prisoner  may  raise  it  by 
appeal  or  otherwise  in  the  State  Courts,  and  may  carry 
it  thence,  should  the  decision  be  advised,  to  the  United 
States  Supreme  Court  by  writ  of  error. 

In  in  re  Waite,  81  Federal,  359,  District  Judge  Shiras 
held  that  an  officer  or  agent  of  the  United  States  engaged 
in  the  performance  of  a  duty  arising  under  the  laws 
and  authority  of  the  United  States,  is  not  liable  to  a 
criminal  prosecution  in  the  Courts  of  a  State  for  acts 
done  by  him  in  his  official  capacity,  and  such  agent  or 
officer  need  not  wait  to  carry  the  case  to  the  highest 
Court,  and  then,  by  writ  of  error,  to  the  United  States 
Supreme  Court,  but  may  have  his  release  at  once  upon 
habeas  corpus,  if  necessary,  since  the  operations  of  the 
Federal  Government  would  in  the  meantime  be  obstruct- 
ed by  the  confinement  of  its  officer.  This  decision  was 
affirmed  in  Campbell  vs.  Waite,  by  the  Circuit  Court  of 
Appeals  for  the  Eighth  Circuit,  in  88  Federal,  page  102. 

In  in  re  Miller,  42  Federal,  307,  the  Court  held  that 
where  a  United  States  Marshal  is  arrested  under  State 
authority,  on  a  charge  of  forgery,  the  fact  that  at  the  time 
of  his  arrest  he  was  on  his  way  to  serve  process  issued  by 
a  United  States  Commissioner,  did  not  oust  the  State 
authorities  from  jurisdiction,  where  it  does  not  appear 
that  he  was  arrested  for  any  act  done  in  pursuance  of 


Some  General  Provisions  651 

Federal  authority,  or  with  the  intent  to  interfere  with 
the  service  of  the  process  in  his  hands. 

The  case  of  ex  parte  Geisler,  50  Federal,  411,  recites  the 
clause  in  the  counterfeiting  statute  which  authorizes 
prosecution  for  that  offense  in  the  State  Courts,  and  holds, 
of  course,  that  the  State  Courts  have  power  to  punish 
counterfeiting  under  the  State  statutes. 

§  399.  Pardoning  Power — Section  327  of  the  new 
Code  is  in  the  exact  words  of  old  Section  5330,  and  reads 
as  follows: 

"Sec.  327.  Whenever,  by  the  judgment  of  any  court  or  judicial 
officer  of  the  United  States,  in  any  criminal  proceeding,  any  person  is 
sentenced  to  two  kinds  of  punishment,  the  one  pecuniary  and  the 
other  corporeal,  the  President  shall  have  full  discretionary  power  to 
pardon  or  remit,  in  whole  or  in  part,  either  one  of  the  two  kinds 
without,  in  any  manner,  impairing  the  legal  validity  of  the  other  kind, 
or  of  any  portion  of  either  kind,  not  pardoned  or  remitted." 

This  section  does  not  mean  that  a  pardon  releases  the 
offender  from  all  of  the  disabilities  imposed  by  the  of- 
fense, to  the  extent  of  undoing  any  rights  which  have 
vested  in  others  directly,  as  property  rights,  Knote  vs. 
United  States,  94  U.  S.,  157,  24  Law  Ed.,  442. 

Under  the  rules  of  the  Department  of  Justice,  those 
who  seek  pardons  should  make  their  applications  direct 
to  the  President,  who,  in  turn,  refers  the  papers  to  the 
Attorney  General,  who  thereafter  refers  them  to  the 
District  Attorney  in  the  proper  District,  with  instruc- 
tions to  report  thereon,  and  obtain,  if  possible,  the  views 
of  the  trial  Judge.  Both  trial  Judges  and  District  At- 
torneys are  requested  by  the  Department  of  Justice  not 
to  make  recommendations  or  give  letters  for  commuta- 
tion until  requested  so  to  do  by  the  Department  of  Justice. 

§  399a.  Pardon — Acceptance  of — and  President's 
Power. — In  order  that  a  pardon  be  effective  it  must  bex 
accepted.  Burdick  vs.  U.  S.,  236  U.  S.,  79.  Over- 
ruling U.  S.  vs.  Burdick,  211  Federal,  493.  The  Presi- 
dent's power  with  reference  to  pardons  is  constitutional 
and  cannot  be  abridged  by  Congress.  Thompson  vs. 
Duehay,  217  Federal,  484.  The  Parole  Act  of  June  25, 
1910,  36th  Statute  at  Large,  819,  will  not  be  so  construed 
as  to  interfere  in  any  way  whatsoever  with  the  constitu- 


652  Federal  Criminal  Law  Procedure. 

tional  right  of  the  President  to  pardon  as  to  him  may 
seem  proper.    Thompson  vs.  Duehay,  217  Federal,  484. 

Sec.     399  b.     Pardon,  etc.,  Continued. 

In  Pablo  vs.  U.  S.,  242  F.  905,  it  was  held  that  a  tele- 
gram to  the  United  States  attorney  from  Washington  ad- 
vising that  a  witness  which  he  presented  had  been  par- 
doned was  sufficient  to  authorize  the  court  to  rule  that 
he  could  testify. 

§  400.  Qualified  Verdicts  in  Certain  Cases. — Section 
330  of  the  new  Code,  re-enacts  the  Act  of  the  fifteen  of 
January,  1897,  29  Stat.  L.,  487,  Second  Supplement,  538, 
and  is  in  the  following  words: 

"Sec.  330.  In  all  cases  where  the  accused  is  found  guilty  of  the 
crime  of  murder  in  the  first  degree,  or  rape,  the  jury  may  qualify  their 
verdict  by  adding  thereto  'without  capital  punishment,;  and  whenever 
the  jury  shall  return  a  verdict  qualified  as  aforesaid,  the  person  con- 
victed shall  be  sentenced  to  imprisonment  for  life.-- 

§  401.  Body  of  Executed  Offender  May  be  Delivered 
to  Surgeon  for  Dissection. — Section  5340  of  the  old  stat- 
utes becomes,  in  substance,  Section  331  of  the  new  Code, 
as  follows: 

"Sec.  331.  The  court  before  which  any  person  is  convicted  of  murder 
in  the  first  degree,  or  rape,  may,  in  its  discretion,  add  to  the  judg- 
ment of  death,  that  the  body  of  the  offender  be  delivered  to  a  surgeon 
for  discretion;  and  the  marshal  who  executes  such  judgment  shall 
deliver  the  body,  after  execution,  to  such  surgeon  as  the  court  may  di- 
rect; and  such  surgeon,  or  some  person  appointed  by  him,  shall  receive 
and  take  away  the  body  at  the  time  of  execution." 

§  402.  Who  Are  Principals.— Section  5323  and  5427 
becomes  332  of  the  new  Code,  in  the  following  words: 

"Sec.  332.  Whoever  directly  commits  any  act  constituting  an  o:- 
fense  defined  in  any  law  of  the  United  States,  or  aids,  abets,  counsels, 
commands,  induces,  or  procures  its  commission,  is  a  principal." 

§  402a.  Aiding  and  Abetting,  Continued. — Under  the 
above  section  where  the  accused  was  charged  in  differ- 
ent counts  of  an  indictment,  first  with  aiding  and  abet- 
ting another  to  feloniously  introduce  intoxicating  liquors 
being  a  principal  in  the  commission  of  the  same  crime, 
into  the  Indian  Territory,  and   in   another  count  with 


Some  General  Provisions  65 


•> 


and  it  appeared  that  accused  ordered  and  directed  his 
co-defendant  to  procure  and  bring  in  the  liquor,  acquit- 
tal of  the  latter  was  no  objection  to  a  conviction  of  ac- 
cused. Rooney  vs.  U.  S.,  203  Federal,  928.  In  the 
absence  of  a  statute  abolishing  the  distinction  between 
principal  and  accessory  in  felonies,  all  who  are  present 
aiding  and  abetting  when  a  felony  is  committed  are 
principals  in  the  first  or  second  degree,  and  if  in  the 
second  degree  may  be  arrainged  and  tried  before  the 
principal  in  the  first  degree,  and  may  be  convicted, 
though  the  party  charged  as  the  principal  in  the  first  de- 
gree is  acquitted.  Rooney  vs.  U.  S.,  203  Federal,  928. 
It  is  not  necessary  where  the  defendant  was  charged  with 
knowingly  and  fraudulently  aiding  and  abetting  a  bank- 
rupt corporation,  of  which  he  was  president  and  general 
manager,  to  conceal  its  assets  from  its  trustee,  that  the 
corporation  should  be  first  convicted  before  the  convic- 
tion of  accused.    Kaufman  vs.  U.  S.,  202  Federal,  614. 

Sec.     402  b.     Who  are  Principals,  Continued. 

In  Vane  vs.  U.  S.,  254  F.  32,  it  was  held  that  one  who 
aids  or  abets  may  be  directly  charged  as  a  principal  and 
such  charge  will  be  supported  by  evidence  that  he  aided 
and  abetted. 

§  403.  Punishment  of  Accessories. — Section  333  of 
the  new  Code  comprises  the  substantial  elements  of  5533, 
5534,  and  5535  of  the  old  statutes,  and  is  in  the  following 
words : 

"Sec.  333  Whoever,  except  as  otherwise  expressly  provided  by  law, 
being  an  accessory  after  the  fact  to  the  commissions  of  any  offense 
defined  in  any  law  of  the  United  States,  shall  be  imprisoned  not  ex- 
ceeding one-half  the  longest  term  of  imprisonment,  or  fined  not  ex- 
ceeding one-half  the  largest  fine  prescribed  for  the  punishment  of  the 
pirncipal,  or  both,  if  the  principal  is  punishable  by  both  fine  and  im- 
prisonment; or  if  the  principal  is  punishable  by  death,  then  an  ac- 
cessory shall  be  imprisoned  not  more  than  ten  years." 

§  404.  Felonies  and  Misdemeanors. — Section  335  of 
the  new  Code  is  one  of  the  most  important  and  most 
practical  of  the  entire  Act,  because  it  settles  for  all  time 
that  much  mooted  question  often  raised  upon  challenges 


654  Federal  Criminal  Law  Procedure. 

and  elsewhere  as  to  when  a  given  offense  is  a  misdemean- 
or or  a  felony.    The  Section  is  in  the  following  words: 

"§  Sec.  335.  All  offenses  which  may  be  punished  by  death,  or 
imprisonment  for  a  term  exceeding  one  year,  shall  be  deemed  felonies. 
All  other   offenses  shall  be  deemed   misdemeanors." 

Sec.     404  a.     Felonies  and  Misdemeanors  Continued. 

Though  a  statute  denounces  an  offense  as  a  misdemean- 
or, if  it  contains  a  felonious  punishment  the  offense 
is  a  felony  and  not  a  misdemeanor,  Hoss  vs.  U.  S.,  232 
F.  328. 

§  405.  Omission  of  Words  "Hard  Labor"  Not  to  De- 
prive Court  of  Power  to  Impose. — Section  338  of  the  new 
Code  reads  as  follows: 

"Sec.  ;>38.  The  omission  of  the  words  "hard  labor"  from  the  pro- 
visions prescribing  the  punishment  in  the  various  sections  of  this 
Act,  shall  not  be  construed,  as  depriving  the  court  of  the  power  to 
impose  labor  as  a  part  of  the  punishment,  in  any  case  where  such 
power  now  exists." 

§  405a.  Imprisonment,  and  Where. — Where  the  sen- 
tence is  for  one  year  only  the  Court  is  without  authority 
to  prescribe  hard  labor  as  a  term  of  the  sentence  or  to  or- 
der his  confinement  in  a  Government  penitentiary.  Mit- 
chell vs.  U.  S.,  196  Federal,  874.  Sections  5541  and  5542  of 
the  Revised  Statutes  authorize  confinement  in  a  peni- 
tentiary when  the  sentence  is  for  a  period  longer  than 
one  year,  or  to  imprisonment  and  confinement  at  hard 
labor.  Baird  vs.  U.  S.,  196  Federal,  778;  Thompson  vs. 
Duehay,  217  Federal,  484. 

Sec.     405  b.     "Hard    Labor"    and    Imprisonment, 
etc.,  Continued. 

In  Robertson  vs.  U.  S.,  262  F.  984,  it  was  held  that 
section  338  did  not  apply  to  a  statute  subsequently  en- 
acted. 

The  punishment  must  be  over  one  year  in  order  to 
authorize  a  penalty  of  confinement  or  to  hard  labor,  Hick- 
son  vs.  U.  S.,  258  F.  867. 

A  statute  saying  "not  less  than  five  years"  supports 
a  sentence  for  five,  Lee  Lin  vs.  U.  S.,  250  F.  694. 

Time  spent  in  jail  awaiting  a  habeas  corpus  writ  is 
to  be  credited  on  the  penitentiary  sentence,  Price  vs. 


Some  General  Provisions  655 

McGuinness,  269  F.  977.  This  rule  would  not  be  opera- 
tive unless  the  prisoner,  at  the  time  of  his  application, 
has  already  been  committed  on  his  prison  warrant, 

As  to  cumulative  sentence,  etc.,  see  Brinkman  vs.  Mor- 
gan, 253  F.  553. 

§  406.  Repealing  provisions,  Chapter  XV.  of  the  new 
Code  which  includes  Sections  341  to  345,  repeal  such  sec- 
tions of  the  old  Code  as  are  necessary  to  make  effective 
the  new  Code;  providing  that  accrued  rights  shall  not  be 
affected,  and  announcing  that  prosecutions  and  acts  of 
limitations  are  not  affected. 

§  407.  Parole  of  United  States  Prisoners.— The  Act 
of  Congress  dated  June  25,  1910,  provides  that  the  Super- 
intendent of  Prisons  of  the  Department  of  Justice  and 
the  warden  and  physician  of  each  United  States  Peni- 
tentiary, shall  constitute  a  board  of  parole  of  such  prison, 
and  provides,  in  general  terms,  for  the  release  on  parole 
of  convicts  so  recommended  by  the  Board.  The  Act  is 
in  ten  sections. 

§  407a.  For  Construction  of  Parole  Act. — For  com- 
plete construction  of  the  Parole  Act,  see  ex  parte  Marcie, 
207  Federal,  809. 

§  408.  Witnesses  for  Poor  Accused. — Section  878  of 
the  old  statutes  provides  that  when  any  person  is  indicted 
in  any  Court  of  the  United  States  who  is  unable  to  pay 
for  witnesses  in  his  behalf,  he  shall  make  an  affidavit 
setting  forth  facts  in  accordance  with  the  terms  of  the 
section,  in  which  event  the  Court  orders  the  process  at 
the  expense  of  the  United  States. 

The  Act  of  June  25,  1910,  authorizes  suits,  writs  of 
error,  etc.,  by  poor  persons  upon  making  of  certain  cer- 
tificates and  oaths  therein  provided  for. 

§  409.  Publicity  of  Contributions. — An  Act  approved 
June  25,  1910,  provides  for  the  publicity  of  the  contribu- 
tions made  to  all  political  parties,  which  shall  in  two  or 
more  States  influence  the  result,  or  attempt  to  influence 
the  result,  of  an  election  at  which  representatives  in  Con- 
gress are  to  be  elected.  The  Act  is  in  ten  sections,  and 
provides  in  Section  6  that  the  public  statements  shall 
give  the  name  and  address  of  each  contributor,  the  total 
sum  contributed,  the  total  sum  of  all  promises  and  loans 


G5G  Federal  Criminal  Law  Procedure. 

and  advances,  the  total  sum    disbursed,    advanced,    or 
promised,  and  provides  a  penalty  in  Section  10,  as  follows: 

"That  every  person  wilfully  violating  any  of  the  provisions  of  this 
Act  shall,  upon  conviction,  be  fined  not  more  than  one  thousand  dol- 
lars or  imprisoned  not  more  than  one  year,   or   both." 


CHAPTER  XXIII. 

SMUGGLING. 

§  410.  Collection  of  Duties. 

411.  Passengers. 

412.  Offenses. 

413.  Offenses  Continued. 

414.  Securing  Entry  by  False  Samples. 

415.  Concealing  or  Destruction  of  Invoices. 

§  410.  Collection  of  Duties. — To  make  the  collection 
of  duties  more  certain  Congress  lias  provided  a  few  crim- 
inal statutes  among  which  are  the  following: 

"Sec.  2802.  Whenever  any  article  subject  to  duty  is  found  in  the 
baggage  of  any  person  arriving  within  the  United  States,  which  was 
not  at  the  time  of  making  entry  for  such  baggage,  mentioned  to  the 
collector  before  whom  such  entry  was  made,  by  the  person  making 
entry,  such  article  shall  be  forfeited,  and  the  person  in  whose  bag- 
gage it  is  found  shall  be  liable  to  a  penalty  of  treble  the  value  of  such 
article." 

Section  2799,  Revised  Statutes  United  States,  which 
must  be  read  in  connection  with  the  foregoing  section, 
provides  two  independent  systems  of  formalities  for  the 
importation  of  personal  effects  and  merchandise  not  per- 
sonal effects,  each  complete  in  itself,  such  section  read- 
ing as  follows: 

"Sec.  2799.  In  order  to  ascertain  what  articles  ought  to  be  exempt- 
ed as  wearing  apparel,  and  other  personal  baggage,  and  the  tools 
or  implements  of  a  mechanical  trade  only,  of  persons  who  arrive  in 
the  United  States,  due  entry  thereof,  as  of  other  merchandise,  but 
separate  and  distinct  from  that  of  any  other  merchandise,  imported 
from  a  foreign  port,  shall  be  made  with  the  collector  of  the  district 
in  which  the  articles  are  intended  to  be  landed  by  the  owner  thereof, 
or  his  agent,  expressing  the  persons  by  whom  or  for  whom  such  entry 
is  made,  and  particularizing  the  several  packages,  and  their  contents, 
with  their  marks  and  numbers;  and  the  person  who  shall  make  the 
entry  shall  take  and  subscribe  an  oath  before  the  collector,  declaring 
that  the  entry  subscribed  by  him  and  to  which  the  oath  is  annexed 
contains,  to  the  best  of  his  knowledge  and  belief,  a  just  and  true  ac- 
count of  the  contents  of  the  several  packages  mentioned  in  the  entry, 
specifying  the  name  of  the  vessel,  of  her  master,  and  of  the  port  from 
which  she  has  arrived;    and  that  such  packages  contain  no  merchan- 

(657) 

42 


658  Federal  Criminal  Law  Procedure. 

dise  whatever  other  than  wearing  apparel,  personal  baggage,  or,  as 
the  case  may  be,  tools  of  trade,  specifying  it;  that  they  are  the 
property  of  a  person  named  who  has  arrived,  or  is  shortly  expected 
to  arrive  in  the  United  States,  and  are  not  directly  or  indirectly  im- 
ported for  any  other  or  intended  for  sale." 

§  411.  Passengers. — It  cannot  have  been  intended  that 
both  the  statutes  provided  for  in  Section  2799  should  be 
applicable  to  merchandise  which  was  imported  bv  a  pas- 
senger arriving  in  the  United  States  but  which  was  not 
attempted  to  be  concealed  by  addressing  it  as  baggage. 
United  States  vs.  One  Trunk,  175  Federal,  1012. 

Inasmuch  as  the  articles  for  sale,  which  accompany  a 
passenger  arriving  in  the  United  States,  are  not  required 
to  be  declared  at  the  same  time  as  the  passenger's  per- 
sonal baggage,  an  intentional  mistatement  of  the  value 
of  such  articles  does  not  make  the  articles  forfeitable, 
because  the  importer  was  under  no  obligation  to  enter 
them,  or  declare  their  value  at  that  time  under  Section 
2799,  relating  to  baggage.  United  States  vs.  One  Trunk, 
175  Federal,  1012. 

Jewelry  worn  upon  the  person  openly  is  held  to  be  sub- 
ject to  declaration  as  baggage  rather  than  under  the 
regulations  for  the  importation  of  merchandise.  One 
Pearl  Chain  vs.  United  States,  123  Federal,  371. 

Merchandise  for  sale  is  not  baggage  within  the  mean- 
ing of  this  section.  United  States  vs.  One  Trunk,  175 
Federal,  1012. 

When  one  purchases  wearing  apparel  and  jewelry  for 
personal  use  and  made  a  declaration,  on  board  the  vessel, 
"Wearing  apparel,  value  not  known,"  and  proceeded  to 
that  portion  of  the  vessel  roped  off  for  convenient  ex- 
amination of  passengers'  effects,  to  give  necessary  in- 
formation to  complete  the  entry,  he  is  not  liable  to  have 
the  article  seized  under  Section  2802.  United  States 
vs.  One  Pearl  Chain,  139  Federal,  513. 

A  declaration  by  an  importer  that  she  had  one  trunk 
for  "public  store,"  such  being  the  place  where  upon 
landing  articles  are  examined  and  appraised,  and  later, 
the  filing  of  a  written  entry  at  the  Custom  House,  com- 
plies with  the  section  under  discussion.  United  States 
vs.  One  Trunk,  184  Federal,  317. 


Smuggling  659 

The  list  made  out  by  the  passenger  should  contain 
sufficient  information  for  the  officers  to  require  as  to  the 
dutiable  character  of  the  contents  of  baggage.  Harts  vs. 
United  States,  140  Federal,  843. 

Entry  made  subsequent  to  the  accrual  of  the  right  of 
forfeiture  does  not  waive  such  right.  United  States  vs. 
One  Purple  Cloth  Costume,  158  Federal,  899. 

Mentioning  of  one  trunk  under  the  heading  of  dutiable 
articles  is  sufficient  within  this  section.  United  States 
vs.  One  Trunk,  171  Federal,  772.  Fraudulent  intent  is 
not  necessary  to  forfeiture.  United  States  vs.  Harts,  131 
Federal,  866;  140  Federal,  843. 

Precious  stones  found  in  the  pockets  of  a  passenger 
are  forfeitable.  Emeralds  vs.  United  States,  154  Federal, 
839. 

§  412.  Offenses. — When  this  section  is  knowingly  or 
fraudulently  violated  a  misdemeanor  is  committed  as  de- 
fined in  Section  3082,  which  reads  as  follows: 

Sec.  3082.  If  any  person  shall  fraudulently  or  knowingly  import 
or  bring  into  the  United  States,  or  assist  in  so  doing,  any  merchandise, 
contrary  to  law,  or  shall  receive,  conceal,  buy,  sell,  or  in  any  manner 
facilitate  the  transportation,  concealment,  or  sale  of  such  merchandise 
after  importation,  knowing  the  same  to  have  been  imported  contrary 
to  law,  such  merchandise  shall  be  forfeited  and  the  offender  shall  be 
fined  in  any  sum  not  exceeding  five  thousand  dollars  nor  less  than 
fifty  dollars,  or  be  imprisoned  for  any  time  not  exceeding  two  years, 
or  both.  Whenever,  on  trial  for  a  violation  of  this  section,  the  defend- 
ant is  shown  to  have  or  to  have  had  possession  of  such  goods,  such 
possession  shall  be  deemed  evidence  to  authorize  conviction,  unless 
the  defendant  shall  explain  the  possession  to  the  satisfaction  of  the 
jury. 

Sec.    412  a.    Illustrative  Cases. 

Rope  being  brought  in  for  another  vessel  by  sailors  is 
a  violation  of  section  2872,  Goldman  vs.  U.  S.,  263  F.  340. 

For  a  forfeiture  of  feathers  see  267  F.  964;  for  a  cattle 
violation  see  Estes  vs.  U.  S.,  227  F.  818;  for  a  case  in- 
volving a  violation,  3082  and  2865  sections  R.  S.  U.  S. 
see  Sierra  vs.  U.  S.,  233  F.  37. 

For  a  case  based  upon  a  conspiracy  to  defraud  the 
United  States  of  duties  see  Smith  vs.  U.  S.,  231  F.  25. 

In  a  prosecution  under  section  3082  the  possession  of 
intoxicating  liquor  and  the  admission  of  tax  ownership 


660  Federal  Criminal  Law  Procedure. 

is  insufficient  to  show  the  liquor  was  wrongfully  import 
ed,  the  same  being  Mexican  liquor,  Sherman  vs.  U.  S., 
268  F.  516. 

§  413.  Offenses,  Continued.— Section  2865  of  the  Old 
Revised  Statutes  was  repealed  by  the  Forty-third  Con- 
gress, shown  on  Page  32,  First  Vol.  of  Supplement,  and 
among  the  provisions  of  the  new  Act  are  the  following: 

Sec.  4.  That  whenever  any  officer  of  the  customs  or  other  person 
shall  detect  and  seize  goods,  wares,  or  merchandise,  in  the  act  of  being 
smuggled,  or  which  have  been  smuggled,  he  shall  be  entitled  to  such 
compensation  therefor  as  the  Secretary  of  the  Treasury  shall  award 
not  exceeding  in  amount  one-half  of  the  net  proceeds,  if  any,  resulting 
from  such  seizure,  after  deducting  all  duties,  costs  and  charges  con- 
nected therewith: 

Provided,  That  for  the  purposes  of  this  act  smuggling  shall  be  con- 
strued to  mean  the  act,  with  intent  to  defraud,  of  bringing  into  the 
United  States,  or,  with  like  intent,  attempting  to  bring  into  the 
United  States,  dutiable  articles  without  passing  the  same,  or  the 
package  containing  the  same,  through  the  custom  house,  or  submitting 
them  to  the  officers  of  the  revenue  for  examination. 

And  whenever  any  person  not  an  officer  of  the  United  States  shall 
furnish  to  a  district  attorney,  or  to  any  chief  officer  of  the  customs, 
original  information  concerning  any  fraud  upon  the  customs-revenue, 
perpetrated  or  contemplated,  which  shall  lead  to  recovery  of  any 
duties  withheld,  or  of  any  fine,  penalty,  or  forfeiture  incurred,  whether 
by  importers  or  their  agents,  or  by  any  officer  or  person  employed  in 
the  custom-service,  such  compensation  may,  on  such  recovery  be 
paid  to  such  person  so  furnishing  information  as  shall  be  just  and 
reasonable,  not  exceeding  in  any  case  the  sum  of  five  thousand  dollars; 
which  compensation  shall  be  paid,  under  the  direction  of  the  Secre- 
tary of  the  Treasury,  out  of  any  money  appropriated  for  that  pur- 
pose. 

Sec.  5.  That  in  all  suits  and  proceedings  other  than  criminal 
arising  under  any  of  the  revenue-laws  of  the  United  States,  the  attor- 
ney representing  the  Government  whenever,  in  his  belief,  any  busi- 
ness-book, invoice,  or  paper,  belonging  to  or  under  the  control  of  the 
defendant  or  claimant,  will  tend  to  prove  any  allegation  made  by  the 
United  States,  may  make  a  written  motion,  particularly  describing 
such  book,  invoice,  or  paper,  and  setting  forth  the  allegation  which 
he  expects  to  prove;  and  thereupon  the  court  in  which  the  suit  or 
proceeding  is  pending  may,  at  its  discretion,  issue  a  notice  to  the 
defendant  or  claimant  to  produce  such  book,  invoice,  or  paper  in 
court,  at  a  day  and  hour  to  be  specified  in  said  notice,  which  together 
with  a  copy  of  said  motion,  shall  be  served  formally  on  the  defendant 
or  claimant  by  the  United  States  marshal  by  delivering  to  him  a 
certified  copy  thereof,  or  otherwise  serving  the  same  as  original 
notices  of  suit  in  the  same  court  are  served; 


Smuggling  661 

And  if  the  defendant  or  claimant  shall  fail  or  refuse  to  produce 
such  book,  invoice,  or  paper  in  obedience  to  such  notice,  the  allegations 
stated  in  the  said  motion  shall  be  taken  as  confessed  unless  his  fail- 
ure or  refusal  to  produce  the  same  shall  be  explained  to  the  satis- 
faction of  the  court. 

And  if  produced,  the  said  attorney  shall  be  permitted,  under  the 
direction  of  the  court,  to  make  examination  (at  which  examination 
the  defendant  or  claimant,  or  his  agent,  may  be  present)  of  such  en- 
tries in  said  book,  invoice,  or  paper  as  relate  to  or  tend  to  prove  the 
allegation  aforesaid,  and  may  offer  the  same  evidence  on  behalf  of  the 
United  States. 

But  the  owner  of  said  books  and  papers,  his  agent  or  attorney, 
shall  have,  subject  to  the  order  of  the  court,  the  custody  of  them, 
except  pending  their  examination  in  court  as  aforesaid. 

Sec.  6.  That  no  payment  shall  be  made  to  any  person  furnishing 
information  in  any  case  wherein  judicial  proceedings  shall  have  been 
instituted,  unless  his  claim  to  compensation  shall  have  been  estab- 
lished to  the  satisfaction  of  the  court  or  judge  having  cognizance 
of  such  proceedings,  and  the  value  of  his  services  duly  certified  by 
said  court  or  judge  for  the  information  of  the  Secretary  of  the  Treas- 
ury, but  no  certificate  of  the  value  of  such  services  shall  be  conclusive 
of  the  amount  thereof. 

And  when  any  fine,  penalty,  or  forfeiture  shall  be  collected  with- 
out judicial  proceedings,  the  Secretary  of  the  Treasury  shall,  before 
directing  payment  to  any  person  claiming  such  compensation,  require 
satisfactory  proof  that  such  person  is  justly  entitled  thereto. 

Sec.  7.  That  except  in  cases  of  smuggling  as  aforesaid,  it  shall 
not  be  lawful  for  any  officer  of  the  United  States,  under  any  pretense 
whatever,  directly  or  indirectly,  to  receive,  accept,  or  contract  for 
any  portion  of  the  money  which  may,  under  any  of  the  provisions 
of  this  or  any  other  act,  accrue  to  any  such  person  furnishing  infor- 
mation; and  any  such  officer  who  shall  so  receive,  accept,  or  contract 
for  any  portion  of  the  money  that  may  accrue  as  aforesaid  shall  be 
guilty  of  a  misdemeanor,  and,  on  conviction  thereof,  shall  be  liable  to 
a  fine  not  exceeding  five  thousand  dollars,  or  imprisonment  for  not 
more  than  one  year,  or  both,  in  the  discretion  of  the  court,  and  shall 
not  be  thereafter  eligible  to  any  office  of  honor,  trust,  or  emolument. 

And  any  such  person  so  furnishing  information  as  aforesaid,  who 
shall  pay  to  any  officer  of  the  United  States,  or  to  any  person  for 
his  use,  directly  or  indirectly,  any  portion  of  said  money,  or  any  other 
valuable  thing,  on  account  of  or  because  of  such  money,  shall  have  u 
right  of  action  against  such  officer  or  other  person,  and  his  legal 
representatives,  to  recover  back  the  same,  or  the  value  thereof. 

Sec.  8.  That  no  officer,  or. other  person  entitled  to  or  claiming 
compensation  under  any  provision  of  this  act,  shall  be  thereby  dis- 
qualified from  becoming  a  witness  in  any  action,  suit,  or  proceeding 
for  the  recovery,  mitigation,  or  remission  thereof,  but  shall  be  sub- 
ject to  examination  and  cross-examination  in  like  manner  with  other 


662  Federal  Criminal  Law  Procedure. 

witnesses,  without  being  thereby  deprived  of  any  right,  title,  share,  or 
interest  in  any  fine,  penalty,  or  forfeiture  to  which  such  examination 
may  relate;  and  in  every  such  case  the  defendant  or  defendants  may  ap- 
pear and  testify  and  be  examined  and  cross-examined  in  like  man- 
mer. 

[Sections  9,  10,  11,  12,  14  and  16  expressly  repealed  by  1890,  June 
10,  ch.  407  No.  29,  p.  755.] 

Sec.  13.  That  any  merchandise  entered  by  any  person  or  persons 
violating  any  of  the  provisions  of  the  preceding  section  (1)  but  not 
subject  to  forfeiture  under  the  same  section,  may  while  owned  by 
him  or  them,  or  while  in  his  or  their  possession,  to  double  the  amount 
claimed,  be  taken  by  the  collector  and  held  as  security  for  the  pay- 
ment of  any  fine  or  fines  incurred  as  aforesaid,  or  may  be  levied  upon 
and  sold  on  execution  to  satisfy  any  judgment  recovered  for  such  fine 
or   fines. 

But  nothing  herein  contained  shall  prevent  any  owner  or  claimant 
from  obtaining  a  release  of  such  merchandise  on  giving  a  bond,  with 
sureties  satisfactory  to  the  collector,  or,  in  case  of  judicial  proceedings 
satisfactory  to  the  court,  or  the  judge  thereof,  for  the  payment  of  any 
fine  or  fines  so  incurred:  Provided,  however,  That  such  merchandise 
shall  in  no  case  be  released  until  all  accrued  duties  thereon  shall 
have  been  paid  or  secured. 

Sec.  14.  [Expressly  appealed  by  1890,  June  10,  Chapter  407  No.  29. 
post  p.  755.] 

Sec.  15.  That  it  shall  be  the  duty  of  any  officer  or  person  employed 
in  the  customs-revenue  service  of  the  United  States,  upon  detection 
of  any  violation  of  the  custom-laws,  forthwith  to  make  complaint 
thereof  to  the  collector  of  the  district,  whose  duty  it  shall  be  promptly 
to  report  the  same  to  the  district  attorney  of  the  district  in  which 
such  fraud  shall  be  committed. 

Immediately  upon  the  receipt  of  such  complaint,  if,  in  his  judgment, 
it  can  be  sustained,  it  shall  be  the  duty  of  such  district  attorney  to 
cause  investigation  into  the  facts  to  be  made  before  a  United  States 
Commissioner  having  jurisdiction  thereof,  and  to  initate  proper  pro- 
ceedings to  recover  the  fines  and  penalties  in  the  premises,  and  to 
prosecute  the  same  with  the  utmost  diligence  to  final  judgment. 

Sec.  16.     [Repealed  by  1890,  June  10,  ch.  407  No.  29,  post  p.  755.] 

Sec.  17.  That  whenever,  for  an  alleged  violation  of  the  customs- 
revenue  laws,  any  person  who  shall  be  charged  with  having  incurred 
any  fine,  penalty,  forfeiture,  or  disability,  other  than  imprisonment, 
or  shall  be  interested  in  any  vessel  or  merchandise  seized  or  subject 
to  seizure,  when  the  appraised  value  of  such  vessel  or  merchandise 
is  not  less  than  one  thousand  dollars,  shall  present  his  petition  to 
the  judge  of  the  district  in  which  the  alleged  violation  occurred,  or 
in  which  the  property  is  situated,  setting  forth,  truly  and  particular- 
ly, the  facts  and  circumstances  of  the  case,  and  praying  for  relief, 
such  judge  shall,  if  the  case,  in  his  judgment,  requires,  proceed  to 
inquire,   in    a   summary   manner   into   the   circumstances   of   the   case, 


Smuggling  663 

at  such  reasonable  time  as  may  be  fixed  by  him  for  that  purpose,  of 
which  the  district  attorney  and  the  collector  shall  be  notified  by  the 
petitioner,  in  order  that  they  may  attend  and  show  cause  why  the 
petition  should  be  refused. 

Sec.  18.  That  the  summary  investigation  hereby  provided  for, 
may  be  held  before  the  judge  to  whom  the  petition  is  presented,  or 
if  he  shall  so  direct,  before  any  United  States  Commissioner  for  such 
district,  and  the  facts  appearing  thereon  shall  be  stated  and  annexed 
to  the  petition,  and,  together  with  a  certified  copy  of  the  evidence, 
transmitted  to  the  Secretary  of  the  Treasury,  who  shall  thereupon 
have  power  to  mitigate  or  remit  such  fine,  penalty,  or  forfeiture,  or 
remove  such  disability,  or  any  part  thereof,  if,  in  his  opinion,  the  same 
shall  have  been  incurred  without  wilful  negligence  or  any  intention 
of  fraud  in  the  person  or  persons  incurring  the  same,  and  to  direct 
the  prosecution,  if  any  shall  have  been  instituted  for  the  recovery 
thereof,  to  cease  and  be  discontinued  upon  such  terms  or  conditions 
as  he  may  deem  reasonable  and  just. 

Sec.  19.  That  it  shall  not  be  lawful  for  any  officer  or  officers  of  the 
United  States  to  compromise  or  abate  any  claim  of  the  United  States 
arising  under  the  custom  laws,  for  any  fine,  penalty,  or  forfeiture  in- 
curred by  a  violation  thereof;  and  any  officer  or  person  who  shall 
so  compromise  or  abate  any  such  claim,  or  attempt  to  make  such  com- 
promise or  abatement,  or  in  any  manner  relieve  or  attempt  to  re- 
lieve from  such  fine,  penalty,  or  forfeiture,  shall  be  deemed  guilty  of 
a  felony,  and,  on  conviction  thereof,  shall  suffer  imprisonment  not 
exceeding  ten  years,  and  be  fined  not  exceeding  ten  thousand  dollars: 
Provided,  however,  That  the  Secretary  of  the  Treasury  shall  have 
power  to  remit  any  fines,  penalties,  or  forfeitures,  or  to  compromise 
the  same,   in   accordance   with   existing   law. 

Sec.  20.  That  whenever  any  application  shall  be  made  to  the  Secre- 
tary of  the  Treasury  for  the  mitigation  or  remission  of  any  fine, 
penalty,  or  forfeiture,  or  the  refund  of  any  duties,  in  case  the  amount 
involved  is  not  less  than  one  thousand  dollars,  the  applicant  shall 
notify  the  district  attorney  and  the  collector  of  customs  of  the  district 
in  which  the  duties,  fine,  penalty,  or  forfeiture  accrued;  and  it  shall 
be  the  duty  of  such  collector  and  district  attorney  to  furnish  to  the 
Secretary  of  the  Treasury  all  practicable  information  necessary  to 
enable  him  to  protect  the  interests  of  the  United   States. 

Sec.  21.  That  whenever,  any  goods,  wares,  and  merchandise  shall 
have  been  entered  and  passed  free  of  duty,  and  whenever  duties  upon 
any  imported  goods,  wares,  and  merchandise  shall  have  been  liquidated 
and  paid,  and  such  goods,  wares  and  merchandise  shall  have  been 
delivered  to  the  owner,  importer,  agent,  or  consignee,  such  entry  and 
passage  free  duty  and  such  settlement  of  duties  shall,  after  the  ex- 
piration of  one  year  from  time  of  entry,  in  the  absence  of  fraud  and 
in  the  absence  of  protest  by  the  owner,  importer,  agent  or  consignee, 
be  final  and  conclusive  upon  all  parties. 


664  Federal  Criminal  Law  Procedure. 

Sec.  22.  That  no  suit  or  action  to  recover  any  pecuniary  penalty 
or  forfeiture  of  property  accruing  under  the  customs  revenue  laws 
of  the  United  States  shall  be  instituted  unless  such  suit  or  action 
shall  be  commenced  within  three  years  after  the  time  when  such 
penalty  or  forfeiture  shall  have  accrued. 

Provided,  That  the  time  of  the  absence  from  the  United  States  of 
the  person  subject  to  such  penalty  or  forfeiture,  or  of  any  concealment 
or  absence  of  the  property,  shall  not  be  reckoned  within  this  period 
of  limitation. 

§  414.  Securing  entry  by  False  Samples. — Section 
69  of  the  new  Code  Act,  1909,  reads  as  follows: 

"Whoever  by  any  means  whatever  shall  knowingly  effect  or  aid  in 
effecting  any  entry  of  goods,  wares,  or  merchandise  at  less  than  the 
true  weight  or  measure  thereof,  or  upon  a  false  classification  thereof 
as  to  quality  or  value,  or  by  the  payment  of  less  than  the  amount 
of  duty  legally  due  thereon,  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  two  years,  or  both." 

This  was  old  Section  5445:  see  United  States  vs.  Law- 
rence, 13  Batch  211,  United  States  vs.  Betteline  First 
Woods,  654. 

Section  68  of  the  new  Code  makes  it  an  offense  for 
any  revenue  officer  to  admit  merchandise  for  less  than 
the  legal  duty,  and  provides  the  same  punishment  as 
Section  69:  this  was  old  Section  5444. 

Sec.     414  a.     Customs  Continued. 

For  a  case  showing  a  conspiracy  to  defraud  the  govern- 
ment by  illegal  importation,  etc.,  see  Stager  vs.  U.  S., 
233  F.  510. 

§  415.  Concealing  or  Destruction  of  Invoices,  Etc. — 
Old  Section  5443  becomes  new  Section  64,  and  is  in  the 
following  wording: 

Whoever  shall  wilfully  conceal  or  destroy  any  invoice,  book,  or 
paper  relating  to  any  merchandise  liable  to  duty,  which  has  been  or 
may  be  imported  into  the  United  States  from  any  foreign  port  or 
country,  after  an  inspection  thereof  has  been  demanded  by  the  collect- 
or of  any  collection  district,  or  shall  at  any  time  conceal  or  destroy 
any  such  invoice,  book,  or  paper  for  the  purpose  of  surpressing  any 
evidence  of  fraud  therein  contained,  shall  be  fined  not  more  than  five 
thousand  dollars,  or  imprisoned  not  more  than  two  years,  or  both. 

Sec.     415  a.     Custom  Decisions. 


Smuggling  665 

For  indictment  for  unlawful  transportation  under  sub- 
section 9,  section  28,  Act  of  August  5,  1909,  see  230.  F. 
311. 

There  must  be  no  unreasonable  searches  in  the  attempt 
to  enforce  the  custom  laws,  230  F.  313;  U.  S.  vs.  Abrams, 
230  F.  313. 

Section  3061  R.  S.  U.  S.  for  forfeiture  of  merchandise 
which  could  be  entered  at  a  custom  house  which  was 
not  does  not  apply  to  liquor  and  a  vehicle  carrying  it 
must  be  forfeited  under  prohibition  act  only,  Goodhope, 
268  F.  694. 

Bullion  which  has  been  imported  will  be  forfeited  for 
failure  to  make  entrv  and  pay  tax,  Shaar  vs.  U.  S.,  269 
F.  26. 

Master  of  vessel  is  not  required  to  show  on  his  manifest 
contraband  such  as  opium,  under  R.  S.  U.  S.  2809,  U.  S. 
v.  Reed,  274  F.  724. 


CHAPTER  XXIIIA. 


Sec.     415b. 


Sec. 

415c. 

Sec. 

415d. 

Sec. 

415e. 

Sec. 

415f. 

Sec. 

415g. 

Sec. 

415h. 

Sec. 

415i. 

Sec. 

415j. 

Sec. 

415k. 

Sec. 

4151. 

Sec. 

415m 

Sec. 

415n. 

Sec. 

415o. 

Sec. 

415p. 

Sec. 

415q. 

Sec. 

415r. 

Sec.     415s. 


Sec. 

41 5u. 

Sec. 

415v. 

Sec. 

415w. 

Sec. 

415x. 

Sec. 

415y. 

Sec. 

415z. 

Sec. 

415z.z 

OTHER  OFFENSES. 

Tax  on  sale  of  grain  for  future  delivery,  etc.;  tax  on 
privileges  or  options  for  contracts  for  future  delivery; 
bushel  tax  on  grain  for  future  delivery;  exceptions,  de- 
signation as  contract  market;  appeal  to  Circuit  Court  of 
Appeals;  payment  and  collection  of  taxes;  violation  of 
act,  penalties. 
Stockyard  regulations. 
Embezzlement  by  court  officers. 

Contributions  to  influence  election  of  members  of  Congress. 
Farm  Loan  Statutes  and  penalties. 
Hoarding  of  Food  and  Fuel. 

Hunting  birds  or  taking  eggs  from  breeding  grounds. 
Injuries  to  telegraph  and  telephone. 
Killing  or  detention  of  homing  pigeons. 
Contributions   by    corporations. 
Shanghaiing  of  sailors. 
War   Risk   Insurance  protection. 

Criminal    correspondence    with    foreign    governments. 
Submitting  false  evidence  as  to  second  class  mail  matter. 
Using   or   selling  cancelled   stamps,   etc.,   and   removal    of 
stamps   from  mail. 

Criminal  prosecution  for  wilfull  infringment  of  copyright 
Sale  or  introduction  of  intoxicating  liquors — Indian  Coun- 
try. 

Embezzlement,   etc.,   public    money   by   banker    or   person 
receiving  unauthorized  deposits. 
Political  contributions. 

Commutation   of  sentence  for  good   behavior  and  parole. 
Law  of  perjury  applicable  to  search   warrant. 
Proof  of  grounds  and  probable  cause. 
Limitations. 
Venue. 

,  Carriers — indictment  for  falsifying  account  of  interstate 
carrier. 


Sec.  415  b.  Tax  on  Sale  of  Grain  for  Future  Deliv- 
ery, etc.,  On  August  24,  1921,  the  Congress  passed  the 
following  act. 

(1).  This  Act  shall  be  known  by  the  short  title  of 
"The  Future  Trading  Act." 

(2).  For  the  purposes  of  this  Act  "contract  of  sale" 
shall  be  held  to  include  sales,  agreements  of  sale,  and 

(666) 


Other  Offenses  667 

agreements  to  sell.  That  the  word  "person"  shall  be 
construed  to  import  the  plural  or  singular  and  shall  in- 
clude individuals,  associations,  partnerships,  corpora- 
tions, and  trusts.  That  the  word  "grain  shall  be  construed 
to  mean  wheat,  corn,  oats,  barley,  rye,  flax  and  sor- 
ghum. The  term  "future  delivery,"  as  used  herein,  shall 
not  include  any  sale  of  cash  grain  or  deferred  shipment 
or  delivery.  The  words  "board  of  trade"  shall  be  held 
to  include  and  mean  any  exchange  or  association,  whether 
incorporated  or  unincorporated,  of  persons  who  shall  be 
engaged  in  the  business  of  buying  or  selling  grain  or 
receiving  the  same  for  sale  on  consignment.  The  act, 
omission,  or  failure  of  any  official,  agent,  or  other  person 
acting  for  any  individual,  association,  partnership,  cor- 
poration, or  trust  within  the  scope  of  his  employment  or 
office  shall  be  deemed  the  act,  omission,  or  failure  of 
such  individual,  association,  partnership,  corporation,  or 
trust,  as  well  as  of  such  official  agent,  or  other  person. 

§  3.  Tax  on  privileges  or  options  for  contracts  for 
purchases  or  sales  of  grain  for  future  delivery;  amount. 

In  addition  to  the  taxes  now  imposed  by  law  there  is 
hereby  levied  a  tax  amounting  to  20  cents  per  bushel  on 
each  bushel  involved  therein,  whether  the  actual  com- 
modity is  intended  to  be  delivered  or  only  nominally  re- 
ferred to,  upon  each  and  every  privilege  or  option  for  a 
contract  either  of  purchase  or  sale  of  grain,  intending 
hereby  to  tax  only  the  transactions  known  to  the  trade 
as  "privileges,"  "bids,"  "offers,"  "puts  and  calls," 
"indemnities,"  or  "ups  and  downs." 

§  4.  Bushel  tax  on  grain  purchased  or  sold  for  future 
delivery;  amount;  exceptions. 

In  addition  to  the  taxes  now  imposed  by  law  there  is 
hereby  levied  a  tax  of  20  cents  a  bushel  on  every  bushel 
involved  therein,  upon  each  contract  of  sale  of  grain  for 
future  delivery  except — 

(a)  Where  the  seller  is  at  the  time  of  the  making  of 
such  contract  the  owner  of  the  actual  physical  property 
covered  thereby,  or  is  the  grower  thereof,  or  in  case 
either  party  to  the  contract  is  the  owner  or  renter  of  land 
on  which  the  same  is  to  be  grown,  or  is  an  association  of 


66S  Federal  Criminal  Law  Procedure. 

such  owners,  or  growers  of  grain,  or  of  such  owners  of 
renters  of  land;  or 

(b)  Where  such  contracts  are  made  by  or  through  a 
member  of  a  board  of  trade  which  has  been  designated 
by  the  Secretary  of  Agriculture  as  a  "contract  market," 
as  hereinafter  provided,  and  if  such  contract  is  evi- 
denced by  a  memorandum  in  writing  which  shows  the 
date,  the  parties  to  such  contract  and  their  addresses, 
the  property  covered  and  its  price,  and  the  terms  of  de- 
liveiy,  and  provided  that  each  board  member  shall  keep 
such  memorandum  for  a  period  of  three  years  from  the 
date  thereof,  or  for  a  longer  perior  if  the  Secretary  of 
Agriculture  shall  so  direct  which  record  shall  at  all  times 
be  open  to  the  inspection  of  any  representative  of  the 
United  States  Department  of  Agriculture  or  the  United 
States  Department  of  Justice. 

(5).  The  Secretary  of  Agriculture  is  hereby  author- 
ized and  directed  to  designate  boards  of  trade  as  "con- 
tract markets"  when,  and  only  when,  such  boards  of 
trade  comply  with  the  following  conditions  and  require- 
ments: 

(a).  When  located  at  a  terminal  market  upon  which 
cash  grain  is  sold  in  sufficient  volumes  and  under  such 
conditions  as  fairly  to  reflect  the  general  value  of  the 
grain  and  the  difference  in  value  between  the  various 
grades  of  grain,  and  having  recognized  official  weighing 
and  inspection  service. 

(b).  When  the  governing  board  thereof  provides  for 
the  making  and  filing,  by  the  board  or  any  member  there- 
of, as  the  Secretary  of  Agriculture  may  direct,  of  re- 
ports in  accordance  with  the  rules  and  regulations,  and 
in  such  manner  and  form  and  at  such  times  as  may  be 
prescribed  by  the  Secretary  of  Agriculture,  showing  the 
details  and  terms  of  all  transactions  entered  into  by  the 
board,  or  the  members  thereof,  either  in  cash  transac- 
tions consummated  at,  on,  or  in  a  board  of  trade,  or 
transactions  for  future  delivery,  and  when  such  govern- 
ing board  provides,  in  accordance  with  such  rules  and 
regulations,  for  the  keeping  of  a  record  by  the  board  or 
the  members  of  the  board  of  trade,  as  the  Secretary  of 
Agriculture  may  direct,  showing  the  details  and  terms 


Other  Offenses  669 

of  all  cash  and  future  transactions  entered  into  by  them, 
consummated  at,  on,  or  in  a  board  of  trade,  such  record 
to  be  in  permanent  form,  showing  the  parties  to  all  such 
transactions,  any  assignments  or  transfers  thereof,  with 
the  parties  thereto,  and  the  manner  in  which  said  trans- 
actions are  fulfilled,  discharged,  or  terminated.  Such 
record  shall  be  required  to  be  kept  for  a  period  of  three 
years  from  the  date  thereof,  or  for  a  longer  period  if 
the  Secretary  of  Agriculture  shall  so  direct,  and  shall 
at  all  times  be  open  to  the  inspection  of  any  representa- 
tive of  the  United  States  Department  of  Agriculture  or 
United  States  Department  of  Justice. 

(c).  When  the  governing  board  thereof  prevents  the 
dissemination,  by  the  board  of  any  member  thereof,  of 
false,  misleading,  or  inaccurate  report,  concerning  crop 
or  market  information  or  conditions  that  affect  or  tend 
to  affect  the  price  of  commodities. 

(d).  When  the  governing  board  thereof  provides  for 
the  prevention  of  manipulation  of  prices,  or  the  corner- 
ing of  any  grain,  by  the  dealers  or  operators  upon  such 
board. 

(e).  When  the  governing  board  thereof  admits  to 
membership  thereof  and  all  privileges  thereon  on  such 
boards  of  trade  any  duly  authorized  representative  of 
any  lawfully  formed  and  conducted  cooperative  associa- 
tions of  producers  having  adequate  financial  responsi- 
bility: Provided,  That  no  rule  of  a  contract  market 
against  rebating  commissions  shall  apply  to  the  dis- 
tribution of  earnings  among  the  bona  fide  members  of 
any  such  cooperative  association. 

(f).  When  the  governing  board  shall  provide  for 
making  effective  the  final  orders  or  decisions  entered 
pursuant  to  the  provisions  of  paragraph  (b)  section  6 
of  this  Act. 

6.  Refusal,  suspension  or  revocation  or  designation 
as  contract  market;  appeal  to  circuit  court  of  appeals; 
refusal  of  trading  privileges  with  contract  markets;  ap- 
peal. 

Any  board  of  trade  desiring  to  be  designated  a  "con- 
tract market"  shall  make  application  to  the  Secretary 
of  Agriculture  for  such  designation  and  accompany  the 


670  Federal  Criminal  Law  Procedure. 

same  with  a  showing  that  it  complies  with  the  above 
conditions,  and  with  a  sufficient  assurance  that  it  will 
continue  to  comply  with  the  above  requirements. 

(a).  A  commission  composed  of  the  Secretary  of  Ag- 
riculture, the  Secretary  of  Commerce,  and  the  Attorney 
General  is  authorized  to  suspend  for  a  period  not  to 
exceed  six  months  or  to  revoke  the  designation  of  any 
board  of  trade  as  a  "contract  market"  upon  a  showing 
that  such  board  of  trade  has  failed  or  is  failing  to  com- 
ply with  the  above  requirements  or  is  not  enforcing  its 
rules  of  government  made  a  condition  of  its  designation 
as  set  forth  in  section  5.  Such  suspension  or  revocation 
shall  only  be  after  a  notice  to  the  officers  of  the  board  of 
trade  affected  and  upon  a  hearing:  Provided,  That  such 
suspension  or  revocation  shall  be  final  and  conclusive  un- 
less within  fifteen  days  after  such  suspension  or  revoca- 
tion by  the  said  commission  such  board  of  trade  appeals 
to  the  circuit  court  of  appeals  for  the  circuit  in  which  it 
has  its  principal  place  of  business  by  filing  with  the 
clerk  of  such  court  a  written  petition  praying  that  the 
order  of  the  said  commission  be  set  aside  or  modified 
in  the  manner  stated  in  the  petition,  together  with  a  bond 
in  such  sum  as  the  court  may  determine,  conditioned 
that  such  board  of  trade  will  pay  the  costs  of  the  pro- 
ceedings of  the  court  so  directs.  The  clerk  of  the  court 
in  which  such  a  petition  is  filed  shall  immediately  cause 
a  copy  thereof  to  be  delivered  to  the  Secretary  of  Ag- 
riculture, chairman  of  said  commission  or  any  member 
thereof,  and  the  said  commission  shall  forthwith  pre- 
pare, certify,  and  file  in  the  court  a  full  and  accurate 
transcript  of  the  record  in  such  proceedings,  including 
the  notice  to  the  board  of  trade,  a  copy  of  the  charges, 
the  evidence,  and  the  report  and  order.  The  testimony 
and  evidence  taken  or  submitted  before  the  said  com- 
mission duly  certified  and  filed  as  aforesaid  as  a  part  of 
the  record,  shall  be  considered  by  the  court  as  the  evi- 
dence in  the  case.  The  proceedings  in  such  cases  in 
the  circuit  court  of  appeals  shall  be  made  a  perferred 
cause  and  shall  be  expedited  in  every  way.  Such  a  court 
may  affirm  or  set  aside  the  order  of  the  said  commission 
or  may  direct  it  to  modify  its  order.    No  such  order  of 


Othee  Offenses  671 

the  said  commission  shall  be  modified  or  set  aside  by 
the  circuit  court  of  appeals  unless  it  is  shown  by  the 
board  of  trade  that  the  order  is  unsupported  by  the 
weight  of  the  evidence  or  was  issued  without  due  notice 
and  a  reasonable  opportunity  having  been  afforded  to 
such  board  of  trade  for  a  hearing,  or  infringes  the  Con- 
stitution of  the  United  States,  or  is  beyond  the  juris- 
diction of  said  commission:  Provided  further,  That  if 
the  Secretary  of  Agriculture  shall  refuse  to  designate 
as  a  contract  market  any  board  of  trade  that  has  made 
application  therefor,  then  such  board  of  trade  may  ap- 
peal from  such  refusal  to  the  commission  described  there- 
in, consisting  of  the  Secretary  of  Agriculture,  the  Sec- 
retary of  Commerce,  and  the  Attorney  General  of  the 
United  States,  with  the  right  to  appeal  as  provided  for 
in  other  cases  in  this  section,  the  decision  on  such  appeal 
to  be  final  and  binding  on  all  parties  interested. 

(b).  If  the  Secretary  of  Agriculture  has  reason  to 
believe  that  any  person  is  violating  any  of  the  provisions 
of  this  Act,  or  is  attempting  to  manipulate  the  market 
price  of  any  grain  in  violation  of  the  provisions  of  sec- 
tion 5  hereof,  or  of  the  rules  or  regulations  made  pur- 
suant to  its  requirements,  he  may  serve  upon  such  per- 
son a  complaint  stating  his  charge  in  that  respect,  to 
which  complaint  shall  be  attached  or  contained  therein 
a  notice  of  hearing,  specifying  a  day  and  place  not  less 
than  three  days  after  the  service  thereof,  requiring  such 
person  to  show  cause  why  an  order  should  not  be  made 
directing  that  all  contract  markets  until  further  notice 
of  the  said  commission  refuse  all  trading  privileges 
thereon  to  such  person.  Said  hearing  may  be  held  in 
Washington,  District  of  Columbia,  or  elsewhere,  before 
the  said  commission,  or  before  a  referee  designated  by 
the  Secretary  of  Agriculture  who  shall  cause  all  evi- 
dence to  be  reduced  to  writing  and  forthwith  transmit 
the  same  to  the  Secretary  of  Agriculture  as  chairman 
of  the  said  commission.  That  for  the  purpose  of  secur- 
ing effective  enforcement  of  the  provisions  of  this  Act 
the  provisions  including  penalties,  of  section  12  of  the 
Interstate  Commerce  Act,  as  amended,  relating  to  the 
attendance  and  testimony  of  witnesses,  the  production 


672  Federal  Criminal  Law  Procedure. 

of  documentary  evidence,  and  the  immunity  of  witnesses, 
are  made  applicable  to  the  power,  jurisdiction,  and  au- 
thority of  the  Secretary  of  Agriculture,  the  said  com- 
mission, or  said  referee  in  proceedings  under  this  Act, 
and  to  persons  subject  to  its  provisions.  Upon  evidence 
received  the  said  commission  may  require  all  contract 
markets  to  refuse  such  person  all  trading  privileges 
thereon  for  such  period  as  may  be  specified  in  said  order. 
Notice  of  such  order  shall  be  sent  forthwith  by  regis- 
tered mail  or  delivered  to  the  offending  person  and  to 
the  governing  boards  of  said  contract  markets.  After 
the  issuance  of  the  order  by  the  commission,  as  afore- 
said, the  person  against  whom  it  is  issued  may  obtain 
a  review  of  such  order  or  such  other  equitable  relief  as 
to  the  court  may  seem  just  by  filing  in  the  United  States 
circuit  court  of  appeals  of  the  circuit  in  which  the  peti- 
tioner is  doing  business  a  written  petition  praying  that 
the  order  of  the  commission  be  set  aside.  A  copy  of 
such  petition  shall  be  forthwith  served  upon  the  com- 
mission by  delivering  such  copy  to  its  chairman,  or  to 
any  member  thereof,  and  thereupon  the  commission  shall 
forthwith  certify  and  file  in  the  court  a  transcript  of  the 
record  theretofore  made,  including  evidence  received. 
Upon  the  filing  of  the  transcript  the  court  shall  have 
jurisdiction  to  affirm,  to  set  aside,  or  modify  the  order 
of  the  commission,  and  the  findings  of  the  commission 
as  to  the  facts,  if  supported  by  the  weight  of  evidence, 
shall  in  like  manner  be  conclusive.    In  proceedings  under 

paragraphs  (a)  and  (b)   the  judgment 

and  decree  of  the  court  shall  be  final,  except  that  the 
same  shall  be  subject  to  review  by  the  Supreme  Court 
upon  certiorari,  as  provided  in  section  240  of  the  Ju- 
dicial Code. 

§  7.    Payment  and  collection  of  tax. 

The  tax  provided  for  herein  shall  be  paid  by  the  seller, 
and  such  tax  shall  be  collected  either  by  the  affixing  of 
stamps  or  by  such  other  method  as  may  have  been  pre- 
scribed by  the  Secretary  of  the  Treasury  by  regulations, 
and  such  regulations  shall  be  published  at  such  times 
and  in  such  manner  as  shall  be  determined  by  the  Sec- 
retary of  the  Treasury. 


Other  Offenses  673 

§  8.  Vacation  of  designation  as  contract  market  on 
application  of  board  of  trade. 

Any  board  of  trade  that  lias  been  designated  a  con- 
tract market,  in  the  manner  herein  provided,  may  have 
such  designation  vacated  and  set  aside  giving  notice  in 
writing  to  the  Secretary  of  Agriculture  requesting  that 
its  designation  as  a  contract  market  be  vacated,  which 
notice  shall  be  served  at  least  ninety  days  prior  to  the 
date  named  therein,  as  the  date  when  the  vacation  of 
designation  shall  take  effect.  Upon  receipt  of  such 
notice  the  Secretary  of  Agriculture  shall  forthwith  or- 
der the  vacation  of  the  designation  of  such  board  of 
trade  as  a  contract  market,  effective  upon  the  day  named 
in  the  notice,  and  shall  forthwith  send  a  copy  of  the 
notice  and  his  order  to  all  other  contract  markets.  From 
and  after  the  date  upon  which  the  vacation  became  ef- 
fective, the  said  board  of  trade  can  thereafter  be  desig- 
nated again  a  contract  market  by  making  application 
to  the  Secretary  of  Agriculture  in  the  manner  herein  pro- 
vided for  an  original  application. 

§  9.    Investigations  by  Secretary  of  Agriculture. 

The  Secretary  of  Agriculture  may  make  such  investi- 
gations as  he  may  deem  necessary  to  ascertain  the  facts 
regarding  the  operations  of  boards  of  trade  and  may 
publish  from  time  to  time,  in  his  discretion,  the  result 
of  such  investigation,  and  such  statistical  information 
gathered  therefrom,  as  he  may  deem  of  interest  to  the 
public,  except  data  and  information  which  would  sepa- 
rately disclose  the  business  transactions  of  any  person, 
and  trade  secrets  or  names  of  customers:  Provided, 
That  nothing  in  this  section  shall  be  construed  to  pro- 
hibit the  Secretary  of  Agriculture  from  making  or  issu- 
ing such  reports  as  he  may  deem  necessary,  relative  to 
the  conduct  of  any  board  of  trade,  or  of  the  transactions 
of  any  person  found  guilty  of  violating  the  provisions 
of  this  Act  under  the  proceedings  prescribed  in  section 
6  of  this  Act:  Provided  further,  That  the  Secretary  of 
Agriculture  in  any  report  may  include  the  facts  as  to 
any  actual  transaction.  The  Secretary  of  Agriculture, 
upon  his  own  initiative  or  in  cooperation  with  existing 
governmental  agencies,  shall  investigate  marketing  con- 

43 


674  Federal  Criminal  Law  Procedure. 

ditions  of  grain  and  grain  products  and  by-products  in- 
cluding supply  and  demand  for  these  commodities,  cost 
to  the  consumer  and  handling  and  transportation 
charges.  He  shall  likewise  compile  and  furnish  to  pro- 
ducers, consumers,  and  distributors,  by  means  of  regular 
or  special  reports,  or  by  such  methods  as  he  may  deem 
most  effective,  information  respecting  the  grain  mar- 
kets, together  with  information  on  supply,  demand, 
prices,  and  other  conditions,  in  this  and  other  countries 
that  affect  the  markets. 

§  10.    Violations  of  act;  penalty. 

Any  person  who  shall  fail  to  evidence  any  such  con- 
tract by  a  memorandum  in  writing,  or  to  keep  the  record, 
or  make  a  report,  or  who  shall  fail  to  pay  the  tax,  as 
provided  in  sections  4  and  5  hereof,  or  who  shall  fail 
to  pay  the  tax  required  in  section  3  hereof,  shall  pay  in 
addition  to  the  tax  a  penalty  equal  to  50  per  centum  of 
the  tax  levied  against  him  under  this  Act  and  shall  be 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof, 
be  fined  not  more  than  $10,000  or  imprisoned  for  not  more 
than  one  year,  or  both,  together  with  the  costs  of  prose- 
cution. 

§  11.    Partial  invalidity  of  act. 

If  any  provision  of  this  Act  or  the  application  thereof 
to  any  person  or  circumstances  as  held  invalid,  the  va- 
lidity of  the  remainder  of  the  Act  and  of  the  application 
of  such  provision  to  other  persons  and  circumstances 
shall  not  be  affected  thereby. 

§  12.     Time  of  taking  effect  of  act. 

No  tax  shall  be  imposed' by  this  Act  within  four  months 
after  its  passage,  and  no  fine,  imprisonment,  or  other 
penalty  shall  be. enforced  for  any  violation  of  this  Act 
occurring  within  four  months  after  its  passage. 

§  13.     Powers  of  Secretary  of  Agriculture. 

The  Secretary  of  Agriculture  may  cooperate  with  any 
department  or  agency  of  the  Government,  any  State, 
Territory,  District,  or  possession,  or  department,  agency 
or  political  subdivision  thereof,  or  any  person;  and  shall 
have  the  power  to  appoint,  remove,  and  fix  the  compen- 
sation of  such  officers  and  employees,  not  in  conflict  witli 
existing  law,  and  make  such  expenditures  for  rent  out- 


Other  Offenses  675 

side  the  District  of  Columbia,  printing,  telegrams,  tele- 
phones, law  books,  books  of  reference,  periodicals,  furni- 
ture, stationery,  office  equipment,  travel,  and  other  sup- 
plies and  expenses  as  shall  be  necessary  to  the  adminis- 
tration of  this  Act  in  the  District  of  Columbia  and  else- 
where, and  there  is  hereby  authorized  to  be  appropri- 
ated, out  of  any  moneys  in  the  Treasury  not  otherwise 
appropriated,  such  sums  as  may  be  necessary  for  such 
purposes. 

Sec.  415c.     Stockyard  Regulations. 

On  August  15,  1921,  the  Congress  passed  the  statute 
for  the  regulation  of  stockyards  and  market  agencies 
providing  certain  regulations  for  the  use  of  pens  for 
cattle,  sheep,  swine,  horses,  mules  and  goats  and  placed 
them  under  the  supervision  of  the  Secretary  of  Agri- 
culture and  declared  against  unjust  and  unreasonable 
and  discriminatory  services  and  authorized  the  recovery 
of  five  hundred  dollars  in  a  civil  suit  for  each  violation 
of  the  act,  such  suit  to  be  brought  in  the  name  of  the 
United  States  by  the  District  Attorneys  under  the  di- 
rection of  the  Attorney  General. 

Sec.  415d.     Embezzlement  by  Court  Officers. 

The  Act  of  May  29,  1920,  reads  as  follows:— 

Any  United  States  marshal,  clerk,  receiver,  referee, 
trustee,  or  other  officer  of  a  United  States  court,  or  any 
deputy,  assistant,  or  employee  of  any  such  marshal, 
clerk,  receiver,  referee,  trustee,  or  other  officer  who  shall, 
after  demand  by  the  party  entitled  thereto,  unlawfully 
retain  or  who  shall  convert  to  his  own  use  or  to  the  use 
of  another  any  moneys  received  for  or  on  account  of 
costs  or  advance  deposits  to  cover  fees,  expenses,  or 
costs,  deposits  for  fees  or  expenses  in  bankruptcy  cases, 
composition  funds  or  money  of  bankrupt  estates,  fees 
in  naturalization  matters,  or  any  other  money  whatever 
which  has  come  into  his  hands  by  virtue  of  his  official 
relation  or  by  the  fact  of  his  official  position  or  employ- 
ment shall  be  deemed  guilty  of  embezzlement  and  shall, 
where  the  offense  is  not  otherwise  punishable  by  some 
statute  of  the  United  States,  be  fined  not  more  than 
double  the  value  of  the  money  thus  retained  or  con- 
verted or  imprisoned  not  more  than  ten  years,  or  both; 


676  Federal  Criminal  Law  Procedure. 

and  it  shall  not  be  a  defense  in  such  case  that  the  ac- 
cused person  had  an  interest,  contingent  or  otherwise, 
in  some  part  of  such  moneys  or  of  the  fund  from  which 
they  were  retained  or  converted. 

Sec.  415e.  Contributions  to  Influence  Election  of 
Members  of  Congress. 

The  Act  of  June  25,  1910,  C.  392,  36  Stat.  822,  makes 
provisions  regulating  election  contributions  and  cam- 
paign expenses  for  representatives  in  Congress  and  pro- 
vides a  penalty  for  a  wilfull  violation  thereof  of  not  more 
than  a  thousand  dollar  fine  or  imprisonment  not  more 
than  one  year  or  both,  pages  58-62  Barnes  1919  Fed. 
Code. 

Sec.     415f.     Farm  Loan  Statute  and  Penalties. 

The  Act  of  July  17,  1916,  C.  245,  39  Stat.  382,  provides 
for  the  creation  of  a  farm  loan  board  and  bureau  and 
federal  land  banks  and  national  farm  loan  associations 
and  for  the  appraisal  of  land  upon  which  loans  were  to 
be  made  and  for  the  issuance  of  farm  loan  bonds  and  for 
the  amortization  of  the  loan,  the  exemption  from  taxation 
of  such  operations,  the  examination  of  such  banks  and 
other  provisions  and  then  provides  a  punishment  for  any 
applicant  who  should  make  any  false  statement  in  his  ap- 
plication for  a  loan,  for  any  member  of  a  loan  committee 
or  appraiser  who  should  wilfully  overvalue  any  land  of- 
fered as  security  and  for  any  examiner  who  should  ac- 
cept any  loan  or  gratuity  from  any  land  bank  and  for 
any  one  who  should  forge  or  counterfeit  any  bond  or 
paper  in  imitation  of  similiar  instruments  of  said  or- 
ganizations, of  a  fine  not  exceeding  five  thousand  dollars 
or  by  imprisonment  not  exceeding  one  year  or  both  and 
for  the  latter  offense  the  same  fine  or  imprisonment  not 
exceeding  five  years  or  both. 

This  is  new  legislation  and  covers  in  detail  with  ap- 
propriate penalties  the  violation  of  all  of  the  essential 
provisions  of  the  Act. 

Sec.  415g.     Hoarding  of  Food  and  Fuel. 

In  the  Act  of  August  10,  1917,  C.  53,  Sec.  26,  40  Stat. 
286,  is  the  following  section:  "Any  person  carrying  on 
or  employed  in  commerce  among  the  several  States,  or 
with  foreign  nations,  or  with  or  in  the  Territories  or 


Other  Offenses  677 

other  possessions  of  the  United  States  in  any  article  suit- 
able for  human  food,  fuel  or  other  necessities  of  life, 
who,  either  in  his  individual  capacity  or  as  an  officer, 
agent,  or  employee  of  a  corporation  or  member  of  a  part- 
nership carrying  on  or  employed  in  such  trade,  shall 
store,  acquire,  or  hold,  or  who  shall  destroy  or  make 
away  with  any  such  article  for  the  purpose  of  limiting 
the  supply  thereof  to  the  public  or  affecting  the  market 
price  thereof  in  such  commerce,  whether  temporarily  or 
otherwise,  shall  be  deemed  guilty  of  a  felony  and,  upon 
conviction  thereof,  shall  be  punished  by  a  fine  of  not 
more  than  $5,000  or  by  imprisonment  for  not  more  than 
two  years,  or  both:  Provided,  That  any  storing  or  hold- 
ing by  any  farmer  or  gardener,  or  other  person  of  the 
products  of  any  farm,  garden,  or  other  land  cultivated 
by  him  shall  not  be  deemed  to  be  a  storing  or  holding 
within  the  meaning  of  this  Act:  Provided  further,  That 
farmers  and  fruit  growers,  cooperative  and  other  ex- 
changes, or  societies  of  a  similiar  character  shall  not  be 
included  within  the  provisions  of  this  section:  Provided 
further,  That  this  section  shall  not  be  construed  to  pro- 
hibit the  holding  or  accumulating  of  any  such  article 
by  any  such  person  in  a  quantity  not  in  excess  of  the 
reasonable  requirements  of  his  business  for  a  reason- 
able time  or  in  a  quantity  reasonably  required  to  furnish 
said  article  produced  in  surplus  quantities  seasonally 
throughout  the  period  of  scant  or  no  production.  Noth- 
ing contained  in  this  section  shall  be  construed  to  repeal 
the  Act  entitled  "An  Act  to  protect  trade  and  commerce 
against  unlawful  restraints  and  monopolies,"  approved 
July  second,  eighteen  hundred  and  ninety,  commonly 
known  as  the  Sherman  Antitrust  Act.  (Act  Aug.  10, 
1917,  c.  53,  Sec.  26,  40  Stat.  286)." 

Sec.    415h.      Hunting  Birds  or  Taking  Eggs  from 
Breeding  Grounds. 

"Whoever  shall  hunt,  trap,  capture,  wilfully  disturb,  or  kill  any 
bird  of  any  kind  whatever,  or  take  the  eggs  of  any  such  bird,  on  any 
lands  of  the  United  States  which  have  been  set  apart  or  reserved  as 
breeding  grounds  for  birds,  by  any  law,  proclamation,  or  executive 
order,  except  under  such  rules  and  regulations  as  the  Secretary  of 
Agriculture  may,  from  time  to  time,  prescribe,  shall  be  fined  not  more 


678  Federal  Criminal  Law  Procedure. 

than  five  hundred  dollars,  or  imprisoned  not  more  than  six  months, 
or  both." 

Sec.     415i.     Injuries  to  Telegraph  or  Telephone. 

"Whoever  shall  wilfully  or  maliciously  injure  or  destroy  any  of  the 
works,  property,  or  material  of  any  telegraph,  telephone,  or  cable 
line,  or  system,  operated  or  controlled  by  the  United  States,  whether 
constructed  or  in  process  of  construction,  or  shall  wilfully  or  malicious- 
ly interfere  in  any  way  with  the  working  or  use  of  any  such  line,  or 
system,  or  shall  wilfully  or  maliciously  obstruct,  hinder,  or  delay 
the  transmission  of  any  communication  over  any  such  line,  or  system, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  three  years,  or  both." 

Sec.     415 j.     Killing  or  Detention  of  Homing  Pigeons. 

That  it  be,  and  it  hereby  is,  declared  to  be  unlawful 
to  knowingly  entrap,  capture,  shoot,  kill,  possess,  or  in 
any  way  detain  an  Antwerp,  or  homing  pigeon,  common- 
ly called  carrier  pigeon,  which  is  owned  by  the  United 
States  or  bears  a  band  owned  and  issued  by  the  United 
States  having  thereon  the  letters  "-TJ.  S.  A."  or  "U.  S. 
N."  and  a  serial  number. 

The  possession  or  detention  of  any  pigeon  described 
in  section  one  of  this  Act  by  any  person  or  persons  in 
any  loft,  house,  cage,  building,  or  structure  in  the  owner- 
ship or  under  the  control  of  such  person  or  persons  with- 
out giving  immediate  notice  by  registered  mail  to  the 
nearest  military  or  naval  authorities,  shall  be  prima 
facie  evidence  of  a  violation  of  this  Act. 

Any  person  violating  the  provisions  of  this  Act  shall, 
upon  conviction,  be  punished  by  a  fine  of  not  more  than 
$100,  or  by  imprisonment  for  not  more  than  six  months, 
or  by  both  such  fine  and  imprisonment. 

Sec.  415k.     Contributions  by  Corporations. 

The  Act  of  1907  and  1909  is  as  follows: 

"It  shall  be  unlawful  for  any  national  bank  or  any  corporation  or- 
ganized by  authority  of  any  law  of  Congress,  to  make  a  money  con- 
tribution in  connection  with  any  election  to  any  political  office.  It 
shall  also  be  unlawful  for  any  corporation  whatever  to  make  a  money 
contribution  in  connection  with  any  election  at  which  Presidential 
and  Vice-Presidential  electors  or  a  Representative  in  Congress  is  to 
be  voted  for,  or  any  election  by  any  State  legislature  of  a  United 
States  Senator.     Every  corporation  which  shall  make  any  contribution 


\ 


Other  Offenses  679 

in  violation  of  the  foregoing  provisions  shall  be  fined  not  more  than 
five  thousand  dollars;  and  every  officer  or  director  of  any  corpora- 
tion who  shall  consent  to  any  contribution  by  the  corporation  in 
violation  of  the  foregoing  provisions  shall  be  fined  not  more  than  one 
thousand  dollars,  or  imprisoned  not  more  than  one  year,  or  both." 

Sec.  4151.     Shanghaiing  of  Sailors. 

Whoever,  with  intent  that  any  person  shall  perform 
service  of  labor  of  any  kind  on  board  of  any  vessel  en- 
gaged in  trade  and  commerce  among  the  several  States 
or  with  foreign  nations,  or  on  board  of  any  vessel  of 
the  United  States  engaged  in  navigating  the  high  seas 
or  any  navigable  water  of  the  United  States,  shall  pro- 
cure or  induce,  or  attempt  to  procure  or  induce,  another, 
by  force  or  threats  or  by  representations  which  he  knows 
or  believes  to  be  untrue,  or  while  the  person  so  procured 
or  induced  is  intoxicated  or  under  the  influence  of  any 
drug,  to  go  on  board  of  any  such  vessel,  or  to  sign  or  in 
anywise  enter  into  any  agreement  to  go  on  board  of  any 
such  vessel  to  perform  service  or  labor  thereon;  or  who- 
ever shall  knowingly  detain  on  board  of  any  such  vessel 
any  person  so  procured  or  induced  to  go  on  board  there- 
of, or  to  enter  into  any  agreement  to  go  on  board  thereof, 
by  any  means  herein  defined;  or  whoever  shall  knowing- 
ly aid  or  abet  in  the  doing  of  any  of  the  things  herein 
made  unlawful,  shall  be  fined  not  more  than  one  thous- 
and dollars,  or  imprisoned  not  more  than  one  year,  or 
both. 

Sec.  415m.     War  Risk  Insurance  Protection. 

For  the  integrity  of  the  War  Risk  Insurance  Act  Con- 
gress provided  the  following  penalties  and  offenses : — 

"False  statements — Whoever  in  any  claim  or  family  allowance,  con- 
pensation,  or  insurance,  or  in  any  document  required  by  this  Act  or 
by  regulation  made  under  this  Act,  makes  any  statement  of  a  mate- 
rial fact  knowing  it  to  be  false,  shall  be  guilty  of  perjury  and  shall 
be  punished  by  a  fine  of  not  more  than  five  thousand  dollars,  or  by 
imprisonment  for  not  more  than  two  years  or  both.  (Act  Sept.  2, 
1914,  c.  293,  sec.  25,  as  added  by  Act,  Oct.  6,  1917,  c.  105,  sec.  2,  40 
Stat.  402.) 

(b)  Fraudulent  acceptance  of  payments— If  any  person  entitled  to 
payment  of  family  allowance  or  compensation  under  this  Act,  whose 
right  to  such  payment  under  this  Act  ceases  upon  the  happening  of 
any    contingency,    thereafter    fraudently    accepts    any    such    payment. 


680  Federal  Criminal  Law  Procedure. 

he  shall  be  punished  by  a  fine  of  not  more  than  two  thousand  dollars, 
or  by  imprisonment  for  not  more  than  one  year,  or  both.  (Act  Sept. 
2,  1914,  c.  293,  Sec.  26,  as  added  by  Oct.  6,  1917,  c.  105,  sec.  2,  40 
Stat.  402.) 

(c)  Fraudulent  obtaining  of  money  or  insurance — Whoever  shall 
obtain  or  receive  any  money,  check,  allotment,  family  allowance, 
compensation,  or  insurance  under  Articles  II,  III,  or  IV  of  this  Act, 
without  being  entitled  thereto,  with  intent  to  defraud  the  United 
States  or  any  person  in  the  military  or  naval  forces  of  the  United 
States,  shall  be  punished  by  a  fine  of  not  more  than  two  thousand 
dollars,  or  by  imprisonment  for  not  more  than  one  year,  or  both. 
(Act  Sept.  2,  1914,  c.  293,  sec.  27,  as  added  by  Act  June  25,  1918, 
c.  104,  sec.   2,  40    Stat)." 

Sec.  415n.  Criminal  Correspondence  With  Foreign 
Governments. 

Every  citizen  of  the  United  States,  whether  actually 
resident  or  abiding  within  the  same,  or  in  any  place  sub- 
ject to  the  jurisdiction  thereof,  or  in  any  foreign  coun- 
try, without  the  permission  or  authority  of  the  Govern- 
ment, directly  or  indirectly,  commences  or  carries  on  any 
verbal  or  written  correspondence  or  intercourse  with  any 
foreign  government  or  any  officer  or  agent  thereof,  with 
an  intent  to  influence  the  measures  or  conduct  of  any  for- 
eign government  or  of  any  officer  or  agent  thereof,  in  re- 
lation to  any  disputes  or  controversies  with  the  United 
States,  or  to  defeat  the  measures  of  the  Government  of 
the  United  States;  and  every  person,  being  a  citizen  of 
or  resident  within  the  United  States  or  in  any  place 
subject  to  the  jurisdiction  thereof,  and  not  duly  author- 
ized, counsels,  advises,  or  assists  in  any  such  corres- 
pondence with  such  intent,  shall  be  fined  not  more  than 
five  thousand  dollars  and  imprisoned  not  more  than  three 
years;  but  nothing  in  this  section  shall  be  construed  to 
abridge  the  right  of  a  citizen  to  apply,  himself  or  his 
agent,  to  any  foreign  government  or  the  agents  thereof 
for  redress  of  any  injury  which  he  may  have  sustained 
from  such  government  or  any  of  its  agents  or  subjects. 
(C.  C.  sec.  5;  R.  S.  sec.  5335;  Act.  March  4,  1909,  c.  321, 
Sec.  5,  35  Stat.  1088.) 

Sec.  415o.  Submitting  False  Evidence  as  to  Second- 
class  Matter. 


Other  Offenses  681 

Whoever  shall  knowingly  submit  or  cause  to  be  sub- 
mitted to  any  postmaster  or  to  the  Post-Office  Depart- 
ment or  any  officer  of  the  postal  service,  any  false  evi- 
dence relative  to  any  publication  for  the  purpose  of  se- 
curing the  admission  thereof  at  the  second-class  rate, 
for  transportation  in  the  mails,  shall  be  fined  not  more 
than  five  hundred  dollars.  (C.  C.  sec.  223;  Acts  March 
3,  1879,  c.  180,  sec.  13,  20  Stat.  359;  June  18,  1888,  c.  394, 
sec.  1,  25  Stat.187;  March  2,  1905,  c.  1304,  33  Stat.  823; 
March  4,  1909,  c.  321,  sec.  223,  35  Stat,  1133.) 

Sec.  415p.  Using  or  Selling  Canceled  Stamps  or 
Stamped  Envelope  or  Card;  Eemoval  of  Stamps  from 
Mail. 

Whoever  shall  use  or  attempt  to  use  in  payment  of 
postage,  any  canceled  postage  stamp,  whether  the  same 
has  been  used  or  not;  or  shall  remove,  attempt  to  remove, 
or  assist  in  removing,  the  canceling  or  defacing  marks 
from  any  postage  stamp,  or  the  superscription  from  any 
stamped  envelope,  or  postal  card,  that  has  once  been  used 
in  payment  of  postage,  with  the  intent  to  use  the  same  for 
a  like  purpose,  or  to  sell  or  offer  to  sell  the  same,  or 
shall  knowingly  have  in  possession  any  postage  stamp, 
stamped  envelope,  or  postal  card,  with  intent  to  use  the 
same,  or  shall  knowingly  sell  or  offer  to  sell  any  such 
postage  stamp,  stamped  envelope,  or  postal  card,  or  use 
or  attempt  to  use  the  same  in  payment  of  postage;  or 
whoever  unlawfully  and  wilfully  shall  remove  from  any 
mail  matter  any  stamp  attached  thereto  in  payment  of 
postage;  or  shall  knowingly  use  or  cause  to  be  used  in 
payment  of  postage,  any  postage  stamp,  postal  card,  or 
stamped  envelope,  issued  in  pursuance  of  law,  which  has 
already  been  used  for  a  like  purpose,  shall,  if  he  be  a 
person  employed  in  the  postal  service,  be  fined  not  more 
than  five  hundred  dollars,  or  imprisoned  not  more  than 
three  years,  or  both;  and  if  he  be  a  person  not  employed 
in  the  postal  service,  shall  be  fined  not  more  than  five 
hundred  dollars,  or  imprisoned  not  more  than  one  year, 
or  both.  (C.  C.  sec.  205;  R.  S.  sees.  3922-3925;  Acts 
March  3,  1879,  c.  180,  sec,  28,  20  Stat.  362;  March  4,  1909, 
c,  321,  sec.  205,  35  Stat,  H27.), 


682  Federal  Criminal  Law  Procedure. 

Sec.  415q.  Criminal  Prosecution  for  Willful  Infringe- 
ment of  Copyright. 

Any  person  who  willfully  and  for  profit  shall  infringe 
any  copyright  secured  by  this  Act,  or  who  shall  know- 
ingly and  willfully  aid  or  abet  such  infringement,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  upon  convic- 
tion thereof  shall  be  punished  by  imprisonment  for  not 
exceeding  one  year  or  by  a  fine  of  not  less  than  one  hun- 
dred dollars  nor  more  than  one  thousad  dollars,  or  both, 
in  the  discretion  of  the  court:  Provided,  however,  That 
nothing  in  this  Act  shall  be  so  construed  as  to  prevent 
the  performance  of  religious  or  secular  works  such  as 
oratorios,' cantatas,  masses,  or  octavo  choruses  by  public 
schools,  church  choirs,  or  vocal  societies,  rented,  bor- 
rowed, or  obtained  from  some  public  library,  public 
school,  church  choir,  school  choir,  or  vocal  society,  pro- 
vided the  performance  is  given  for  charitable  or  edu- 
cational purposes  and  not  for  profit.  (Act  March  4,  1909, 
c.  320,  sec.  28,  35  Stat.  1082. 

Sec.  415r.  Sale  or  Introduction  of  Intoxicating  Liq- 
uors— Indian  Country. 

No  ardent  spirits,  ale,  beer,  wine,  or  intoxicating  liquor 
or  liquors  of  whatever  kind  shall  be  introduced,  under  any 
pretense,  into  the  Indian  country.  Every  person  who  sells, 
exchanges,  gives,  barters,  or  disposes  of  any  ardent  spir- 
its, ale,  beer,  wine,  or  intoxicating  liquors  of  any  kind 
to  any  Indian  under  charge  of  any  Indian  superintendent 
or  agent,  or  introduces  or  attempts  to  introduce  any  ar- 
dent spirits,  ale,  wine,  beer,  or  intoxicating  liquor  of  any 
kind  into  the  Indian  country  shall  be  punished  by  im- 
prisonment for  not  more  than  two  years,  and  by  fine  of 
not  more  than  three  hundred  dollars  for  each  offense. 
But  it  shall  be  a  sufficient  defense  to  any  charge  of  in- 
troducing or  attempting  to  introduce  ardent  spirits,  ale, 
beer,  wine,  or  intoxicating  liquors  into  the  Indian  coun- 
try that  the  acts  charged  were  done  under  authority  in 
writing  from  the  War  Department,  or  any  officer  duly 
authorized  thereunto  by  the  War  Department. 

No  part  of  section  twenty-one  hundred  and  thirty-nine 
or  section  twenty-one  hundred  and  forty  of  the  Revised 
Statutes  shall  be  a  bar  to  the  prosecution  of  any  officer, 


Other  Offenses  683 

soldier,  butler  or  storekeeper,  attache,  or  employee  of 
the  Army  of  the  United  States  who  shall  barter,  donate, 
or  furnish  in  any  manner  whatsoever  liquors,  beer,  or 
any  intoxicating  beverage  whatsoever  to  any  Indian. 

All  complaints  for  the  arrest  of  any  person  or  persons 
made  in  violation  of  any  of  the  provisions  of  this  Act 
shall  be  made  in  the  county  where  the  offense  shall  have 
been  committed,  or  if  committed  upon  or  within  any 
reservation  not  included  in  any  county,  then  in  any  coun- 
ty adjoining  such  reservation;  but  in  all  cases  such  ar- 
rests shall  be  made  before  any  United  States  court  com- 
missioner residing  in  such '  adjoining  county,  or  before 
any  magistrate  or  judicial  officer  authorized  by  the  laws 
of  the  State  in  which  such  reservation  is  located  to  issue 
warrants  for  the  arrest  and  examination  of  offenders 
by  section  ten  hundred  and  fourteen  of  the  Revised 
Statutes  of  the  United  States.  And  all  persons  so  ar- 
rested shall,  unless  discharged  upon  examination,  be 
held  to  answer  and  stand  trial  before  the  court  of  the 
United  States  having  jurisdiction  of  the  offense. 

Any  person  who  shall  sell,  give  away,  dispose  of,  ex- 
change, or  barter  any  malt,  spirituous,  vinous  liquor  in- 
cluding beer,  ale,  and  wine,  or  any  ardent  or  other  in- 
toxicating liquor  of  any  kind  whatsoever,  or  any  es- 
sence, extract,  bitters,  preparations,  compound,  compo- 
sition, or  any  article  whatsoever,  under  any  name,  label, 
or  brand,  which  produces  intoxication,  to  any  Indian  to 
whom  allotment  of  land  has  been  made  while  the  title 
to  the  same  shall  be  held  in  trust  by  the  Government, 
or  to  any  Indian  a  ward  of  the  Government  under  charge 
of  any  Indian  superintendent  or  agent,  or  any  Indian, 
including  mixed  bloods,  over  whom  the  Government, 
through  its  departments,  exercises,  guardianship,  and 
any  person  who  shall  introduce  or  attempt  to  introduce 
any  malt,  spirituous,  or  vinous  liquor,  including  beer, 
ale,  and  wine,  or  any  ardent  or  intoxicating  liquor  of  any 
kind  whatsoever  into  the  Indian  country,  which  term 
shall  include  any  Indian  allotment  while  the  title  to  the 
same  shall  be  held  in  trust  by  the  Government,  or  while 
the  same  shall  remain  inalienable  by  the  allottee  with- 
out the  consent  of  the  United  States,  shall  be  punished 


684  Federal  Criminal  Law  Procedure. 

by  imprisonment  for  not  less  than  sixty  days,  and  by  a 
fine  of  not  less  than  one  hundred  dollars  for  the  first 
offense  and  not  less  than  two  hundred  dollars  for  each 
offense  thereafter:  Provided,  however,  That  the  per- 
son  convicted  shall  be  committed  until  fine  and  costs  are 
paid.  But  it  shall  be  a  sufficient  defense  to  any  charge 
of  introducing  or  attempting  to  introduce  ardent  spirits, 
ale,  beer,  wine,  or  intoxicating  liquors  into  the  Indian 
country  that  the  acts  charged  were  done  under  author- 
ity, in  writing,  from  the  War  Department  or  any  officer 
duly  authorized  thereunto  by  the  War  Department. 

Any  person,  whether  an  Indian  or  otherwise,  who 
shall,  in  said  Territory,  manufacture,  sell,  give  away,  or 
in  any  manner,  or  by  any  means  furnish  to  anyone,  either 
for  himself  or  another,  any  vinous,  malt,  or  fermented 
liquors,  or  any  other  intoxicating  drinks  of  any  kind 
whatsoever,  whether  medicated  or  not,  or  who  shall  carry, 
or  in  any  manner  have  carried,  into  said  Territory  any 
such  liquors  or  drinks,  or  who  shall  be  interested  in  such 
manufacture,  sale,  giving  away,  furnishing  to  anyone,  or 
carrying  into  said  Territory  any  of  such  liquors  or 
drinks,  shall,  upon  conviction  thereof,  be  punished  by 
fine  not  exceeding  five  hundred  dollars  and  by  imprison- 
ment for  not  less  that  one  month  nor  more  than  five 
years. 

On  and  after  September  first,  nineteen  hundred  and 
eighteen,  possession  by  a  person  of  intoxicating  liquors 
in  the  Indian  country  where  the  introduction  is  or  was 
prohibited  by  treaty  or  Federal  statute  shall  be  an  of- 
fense and  punished  in  accordance  with  the  provisions  of 
the  Acts  of  July  twenty-third,  eighteen  hundred  and 
ninety-two,  and  January  thirteenth,  Eighteen  hundred 
and  ninety-seven. 

Hereafter  it  shall  be  unlawful  to  introduce  and  use 
wines  solely  for  sacramental  purposes,  under  church  au- 
thority, at  any  place  within  the  Indian  country  or  any 
Indian  reservation,  including  the  Pueblo  Eeservations 
in  New  Mexico.  (First  paragraph,  R.  S.  sec.  2139;  Acts 
July  9,  1832,  c.  174,  sec.  4,  4  Stat.  564;  March  15,  1864, 
c.  33,  13  Stat.  29;  Feb.  27,  1877,  c.  69,  sec.  1,  19  Stat.  244; 
July  23,  1892,  c.  234,  27  Stat.  260;  second  paragraph,  Act 


Other  Offenses  685 

July  4,  1884,  c.  180,  sec.  1,  23  Stat.  94;  third  paragraph, 
Act  July  23,  1892,  c.  234,  27  Stat.  261;  fourth  paragraph, 
Act.  Jan.  30,  1897,  c.  109,  sec.  1,  29  Stat,  506;  fifth  par- 
agraph Act  March  1,  1895,  c.  145,  sec.  8,  28  Stat.  697; 
sixth  paragraph,  Act  May  25,  1918,  c,  86,  sec.  1,  40  Stat, 
seventh  paragraph,  Act  Aug.  24,  1912,  c.  338,  sec.  1,  37 
Stat  519.) 

Note.— By  Act  March  2,  1917,  c.  146,  sec.  17,  39  Stat. 
983,  Osage  County,  Okla,  is  made  Indian  country  within 
the  meaning  of  all  liquor  statutes. 

Sec.  415s.  Embezzlement,  etc.,  Public  Money-Banker 
or  Person  Receiving  Unauthorized  Deposit. 

Every  banker,  broker,  or  other  person  not  an  author- 
ized depositary  of  public  moneys,  who  shall  knowingly 
receive  from  any  disbursing  officer,  or  collector  or  in- 
ternal revenue,  or  other  agent  of  the  United  States,  any 
public  money  on  deposit,  or  by  way  of.  loan  or  accommo- . 
dation,  with  or  without  interest,  or  otherwise  than  in 
payment  of  a  debt  against  the  United  States,  or  shall 
use,  transfer,  convert,  appropriate,  or  apply  any  portion 
of  the  public  money  for  any  purpose  not  prescribed  by 
law;  and  every  president,  cashier,  teller,  director,  or 
other  officer  of  any  bank  or  banking  association  who 
shall  violate  any  provision  of  this  section  is  guilty  of 
embezzlement  of  the  public  money  so  deposited,  loaned, 
transferred,  used,  converted,  appropriated,  or  applied, 
and  shall  be  fined  not  more  than  the  amount  embezzled, 
or  imprisoned  not  more  than  ten  years,  or  both.  (C. 
C.  sec.  96;  E.  S.  sec.  5497;  Act  March  4,  1909,  c.  321,  sec. 
96,  35  Stat.  1106.) 

Sec.  415t.  Census  Offenses — Offenses  of  Officers  and 
Employees. 

Any  supervisor,  supervisor's  clerk,  enumerator,  in- 
terpreter, special  agent,  or  other  employee,  who,  having 
taken  and  subscribed  the  oath  of  office  required  by  this 
Act.  shall,  without  justifiable  cause,  neglect  or  refuse  to 
perform  the  duties  enjoined  on  him  by  this  Act,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  upon  convic- 
tion thereof  shall  be  fined  not  exceeding  five  hundred 
dollars;  or  if  he  shall,  without  the  authority  of  the  Di- 
rector of  the  Census,  publish  or  communicate  any  in- 


686  Federal  Criminal  Law  Procedure. 

formation  coming  into  his  possession  by  reason  of  his 
employment  under  the  provisions  of  this  Act,  or  the 
Act  to  provide  for  a  permanent  Census  Office,  or  Acts 
amendatory  thereof  or  supplemental  thereto,  he  shall  be 
guilty  of  a  misdemeanor  and  shall  upon  conviction 
thereof  be  fined  not  to  exceed  one  thousand  dollars,  or 
be  imprisoned  not  to  exceed  two  years,  or  both  so  fined 
and  imprisoned,  in  the  discretion  of  the  court;  or  if  he 
shall  wilfully  and  knowingly  swear  to  or  affirm  falsely, 
he  shall  be  deemed  guilty  of  perjury,  and  upon  convic- 
tion shall  be  imprisoned  not  exceeding  five  years  and  be 
fined  not  exceeding  two  thousand  dollars;  or  if  he  shall 
wilfully  and  knowingly  make  a  false  certificate  or  a  fic- 
titious return,  he  shall  be  guilty  of  a  misdemeanor,  and 
upon  conviction  of  either  of  the  last-named  offenses  he 
shall  be  fined  not  exceeding  two  thousand  dollars  and 
.be  imprisoned  not  exceeding  five  years;  or  if  any  per- 
son who  is  or  has  been  an  enumerator  shall  knowingly 
or  willfully  furnish,  or  cause  to  be  furnished,  directly 
or  indirectly,  to  the  Director  of  the  Census,  or  to  any 
supervisor  of  the  census,  any  false  statement  or  false 
information  with  reference  to  any  inquiry  for  which  he 
was  authorized  and  required  to  collect  information,  he 
shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  be  fined  not  exceeding  two  thousand  dollars 
and.be  imprisoned  not  exceeding  five  years.  (Act  July 
2,  1909,  c.  2,  sec.  22,  36  Stat.  8.) 

Sec.  415u.  Political  Contributions,  etc., 
Solicitation  or  receipt  of  political  contributions  by  offi- 
cers.— No  Senator  or  Representative  in,  or  Delegate  or 
Resident  Commissioner  to  Congress,  or  Senator,  Repre- 
sentative, Delegate,  or  Resident  Commissioner  elect  or 
officer  or  employee  of  either  House  of  Congress,  and  no 
executive,  judicial,  military,  or  naval  officer  of  the 
United  States,  and  no  clerk  or  employee  of  any  depart- 
ment, branch,  or  bureau  of  the  executive,  judicial,  or 
military  or  naval  service  of  the  United  States,  shall, 
directly  or  indirectly,  solicit  or  receive,  or  be  in  any 
manner  concerned  in  soliciting  or  receiving,  any  assess- 
ment, subscription,  or  contribution  for  any  political  pur- 
pose whatever,  from  any  officer,  clerk,  or  employee  of 


Other  Offenses  687 

the  United  States,  or  any  department,  branch,  or  bureau 
thereof,  or  from  any  person  receiving  any  salary  or  com- 
pensation from  moneys  derived  from  the  Treasury  of  the 
United  States.  (C.  C.  sec.  118;  Acts  Jan.  16,  1883,  c. 
27,  sec.  11,  22  Stat.  406;  March  4,  1909,  c  321,  sec.  118, 
35  Stat.  1110.) 

(b)  Same:  in  public  building. — No  person  shall,  in 
any  room  or  building  occupied  in  the  discharge  of  of- 
ficial duties  by  any  officer  or  employee  of  the  United 
States  mentioned  in  the  preceding  section,  or  in  any 
navy-yard,  fort,  or  arsenal,  solicit  in  any  manner  what- 
ever or  receive  any  contribution  of  money  or  other  thing 
of  value  for  any  political  purposes  whatever.  (C.  C.  sec. 
119;  Acts  Jan.  16,  1883,  c.  27,  sec.  12,  22  Stat.  407; 
March  4,  1909,  c.  321,  sec.  119,  35  Stat.  1110.) 

(c)  Immunity  from  official  proscription. — No  of- 
ficer or  employee  of  the  United  States  mentioned  in  sec- 
tion one  hundred  and  eighteen,  shall  discharge,  or  pro- 
mote, or  degrade,  or  in  any  manner  change  the  official 
rank  or  compensation  of  any  other  officer  or  employee, 
or  promise  or  threaten  so  to  do,  for  giving  or  withhold- 
ing or  neglecting  to  make  any  contribution  of  money  or 
other  valuable  thing  for  any  political  purpose.  (C.  C. 
sec.  120;  Acts  Jan.  16,  1883,  c.  27,  sec.  13,  22  Stat.  407;/ 
March  4,  1909,  c.  321,  sec.  120,  35  Stat.  1110.) 

(d)  Giving  money  to  officers  for  political  purposes. 
No  officer,  clerk,  or  other  person  in  the  service  of  the 
United  States  shall,  directly  or  indirectly,  give  or  hand 
to  any  other  officer,  clerk,  or  person  in  the  service  of  the 
United  States,  or  to  any  Senator  or  Member  of  or  Dele- 
gate to  Congress,  or  Resident  Commissioner,  any  money 
or  other  valuable  thing  on  account  of  or  to  be  applied 
to  the  promotion  of  any  political  object  whatever.  (C. 
C.  sec.  121;  Acts  Jan.  16,  1883,  c.  27,  sec.  14,  22  Stat. 
407;  March  4,  1909,  c.  321,  sec.  212,  35  Stat.  1110.) 

(e)  Punishment  for  violation  of  four  preceding  sec-x 
tions. — Whoever  shall  violate  any  provision  of  the  four 
preceding  sections  shall  be  fined  not  more  than  five  thou- 
sand dollars,  or  imprisoned  not  more  than  three  years, 
or  both.  (C.  C.  sec.  122;  Acts  Jan.  16,  1883,  c.  27,  sec. 
15,  22  Stat.  407;  March  4,  1909,  c.  321,  sec.  122,  35  Stat. 


688  Federal  Criminal  Law  Procedure. 

1110.)     See  U.  S.  v.  Thayer,  154  F.  508;  U.  S.  v.  Thayer, 
209  IT.  S.,  39;  U.  S.  v.  Smith,  163  F.  926. 

Sec.  415v.  Commutation  of  Sentence  for  Good  Be- 
havior and  Parole. 

The  Acts  of  1902  and  1906  granted,  for  good  be- 
havior the  following  deductions: — 

Upon  a  sentence  of  not  less  than  six  months  nor  more 
than  one  year,  five  days  for  each  month ;  upon  a  sentence  of 
more  than  one  year  and  less  than  three  years,  six  days 
for  each  month;  upon  a  sentence  of  not  less  than  three 
years  and  less  than  five  years,  seven  days  for  each  month; 
upon  a  sentence  of  not  less  than  five  years  and  less  than 
ten  years,  eight  days  for  each  month;  upon  a  sentence 
of  ten  years  or  more,  ten  days  for  each  month.  "When  a 
prisoner  has  two  or  more  sentences,  the  aggregate  of  his 
several  sentences  shall  be  the  basis  upon  which  his  de- 
duction shall  be  estimated.  Pages  2411-2412,  Barnes' 
1919  Federal  Code. 

Every  prisoner  whose  record  shows  that  he  has  ob- 
served the  rules  of  the  institution  and  who  has  served 
one-third  of  the  total  of  such  term,  or  terms  for  which 
he  was  sentenced,  or  if  sentenced  for  the  term  of  his 
natural  life,  has  served  not  less  than  fifteen  years,  may 
be  released  on  parole,  Act  June  25,  1910,  page  2412 
Barnes'  1919  Federal  Code. 

Sec.  415w.  Law  of  Perjury  Applicable  to  Search 
"Warrants. 

Sections  one  hundred  and  twenty-five  and  one  hundred 
and  twenty-six  of  the  Criminal  Code  of  the  United  States 
shall  apply  to  and  embrace  all  persons  making  oath  or 
affirmation  or  procuring  the  same  under  the  provisions 
of  this  title,  and  such  persons  shall  be  subject  to  all  the 
pains  and  penalties  of  said  sections.  (Act  June  15,  1917, 
c.  30,  Title  XI,  sec.  19,  40  Stat.  230.) 

Sec.     415x.     Proof  of  Grounds   and  Probable  Cause. 

A  search  warrant  can  not  be  issued  but  upon  prob- 
able cause,  supported  by  affidavit,  naming  or  describing 
the  person  and  particularly  describing  the  property  and 
the  place  to  be  searched. 

The  judge  or  commissioner  must,  before  issuing  the 
warrant,  examine  on  oath  the  complainant  and  any  wit- 


Othee  Offenses  689 

ness  he  may  produce,  and  require  their  affidavits  or  take 
their  depositions  in  writing  and  cause  them  to  be  sub- 
scribed by  the  parties  making  them.  (Act  June  15,  1917, 
c.  30,  Title  XI,  sees.  3,  4,  40  Stat.  228.) 

Search  warrants;  affidavits  and  depositions. — The  af- 
fidavits or  depositions  must  set  forth  the  facts  tending 
to  establish  the  grounds  of  the  application  of  probable 
cause  for  believing  that  they  exist. 

These  statutes  should  be  read  in  connection  with  the 
citations  and  suggestions  contained  in  the  paragraph 
relating  to  illegal  searches  and  seizures.  y 

Sec.     415y.     Limitations. 

No  person  shall  be  prosecuted,  tried,  or  punished  for 
treason  or  other  capital  offenses,  willful  murder  except- 
ed, unless  the  indictment  is  found  within  three  vears 
next  after  such  treason  or  capital  offense  is  done  or  com- 
mitted. (R.  S.  sec.  1043;  Act  April  30,  1790,  c.  9,  sec. 
32,  1  Stat.  119.) 

(b)  No  person  shall  be  prosecuted,  tried,  or  punished 
for  any  offense,  not  capital,  except  as  provided  in  section 
one  thousand  and  forty-six,  unless  the  indictment  is 
found,  or  the  information  is  instituted  within  three  years 
next  after  such  offense  shall  have  been  committed.  But 
this  act  shall  not  have  effect  to  authorize  the  prosecution, 
trial  or  punishment  for  any  offense,  barred  by  the  pro- 
visions of  existing  laws.  (R.  S.  sec.  1044;  Act  April 
30,  1790,  c.  9,  sec,  32,  1  Stat.  119;  April  13,  1876,  c.  56, 
19  Stat.  32.) 

(c)  Nothing  in  the  two  preceding  sections  shall  ex- 
tend to  any  person  fleeing  from  justice.  (R.  S.  sec.  1045; 
Act  April  30,  1790,  c.  9,  sec.  1  Stat.  119.) 

(d)  No  person  shall  be  prosecuted,  tried,  or  punish- 
ed for  any  crime  arising  under  the  revenue  laws,  or  the 
slave-trade  laws  of  the  United  States,  unless  the  indict- 
ment is  found  or  the  information  is  instituted  within  five 
years  next  after  the  committing  of  such  crime. 

No  person  shall  be  prosecuted,  tried  or  punished  for 
any  of  the  various  offenses  arising  under  the  internal 
revenue  laws  of  the  United  States  unless  the  indictment 
is  found  or  the  information  instituted  within  three  years 
next  after  the  commission  of  the  offense,   in  all  cases 

44 


690  Federal  Criminal  Law  Procedure. 

where  the  penalty  prescribed  may  be  imprisonment  in 
the  penitentiary,  and  within  two  years  in  all  other  cases; 

Provided,  That  the  time  during  which  the  person 

committing  the  offense  is  absent  from  the 

district  wherein  the  same  is  committed  shall  not  be 
taken  as  any  part  of  the  time  limited  by  law  for  the  com- 
mencement of  such  proceedings:  Provided  further  that 
the  provisions  of  this  act  shall  not  apply  to  offenses  com- 
mitted prior  to  its  passage:  And  provided  further  that 
where  a  complaint  shall  be  instituted  before  a  Commis- 
sioner of  the  United  States  within  the  period  above  limit- 
ed, the  time  shall  be  extended  until  the  discharge  of  the 
Grand  Jury  at  its  next  session  within  the  district:  And 
provided  further  that  this  act  shall  not  apply  to  offenses 
committed  by  officers  of  the  United  States.  (First  para- 
graph, R.  S.  sec.  1046;  Acts  March  26,  1804,  c.  40,  sec. 
3,  2  Stat.  290;  April  20,  1818,  c.  91,  sec.  9,  3  Stat.  452; 
second  paragraph,  Act  July  5,  1884,  c.  225,  sec.  1,  23 
Stat.  122.) 

(e)  No  suit  or  prosecution  for  any  penalty  or  for- 
feiture, pecuniary  or  otherwise,  accruing  under  the  laws 
of  the  United  States,  shall  be  maintained,  except  in  cases 
where  it  is  otherwise  specially  provided,  unless  the  same 
is  commenced  within  five  years  from  the  time  when  the 
penalty  or  forfeiture  accrued:  Provided,  That  the  per- 
son of  the  offender,  or  the  property  liable  for  such  penalty 
or  forfeiture,  shall,  within  the  same  period,  be  found  with- 
in the  United  States ;  so  that  the  proper  process  therefor 
may  be  instituted  and  served  against  such  person  or 
property.  (R.  S.  sec.  1047;  Acts  March  2,  1799,  c.  22, 
sec.  89,  *1  Stat.  695;  March  26,  1804,  c.  40,  sec.  3,  2  Stat. 
290;  April  20,  1818;  c.  91,  sec.  9,  3  Stat.  452;  Feb.  28, 
1839,  c.  36,  sec.  4,  5  Stat.  322;  March  3,  1863,  c.  76,  sec. 
14,  12  Stat.  741;  July  25,  1868,  c.  236,  sec.  1,  15  Stat. 
183.) 

(f )  No  suit  or  action  to  recover  any  pecuniary  penalty 
or  forfeiture  of  property  accruing  under  the  customs 
revenue  laws  of  the  United  States  shall  be  instituted 
unless  such  suit  or  action  shall  be  commenced  within 
three  years  after  the  time  when  such  penalty  or  for- 
feiture shall  have  accrued:     Provided,  That  the  time  of 


Other  Offenses  691 

the  absence  from  the  United  States  of  the  person  subject 
to  such  penalty  or  forfeiture,  or  of  any  concealment  or 
absence  of  the  property,  shall  not  be  reckoned  within 
this  period  of  limitation.  (Act  June  22,  1874,  c.  391, 
sec.  22,  18  Stat.  190.) 

No  criminal  prosecution  shall  be  maintained  under  the 
copyright  Act  unless  the  same  is  commenced  within  three 
years  after  the  cause  of  action  arose.    Act  March  4,  1919. 

Sec.     415z.     Venue. 

Capital  cases;  where  triable.— The  trial  of  offenses 
punishable  with  death  shall  be  had  in  the  county  where 
the  offense  was  committed,  where  that  can  be  done  with- 
out great  inconvenience.  (R.  S.  sec.  729;  J.  C.  sec.  40; 
Act  March  3,  1911,  c.  231,  sec.  40,  36  Stat.  1100.) 

(b)  Offenses  on  the  high  seas,  or  outside  district, 
where  triable. — The  trial  of  all  offenses  committed  upon 
the  high  seas,  or  elsewhere  out  of  the  jurisdiction  of  any 
particular  State  or  district,  shall  be  in  the  district  where 
the  offender  is  found,  or  into  which  he  is  first  brought. 
(R.  S.  sec.  730;  J.  C.  sec.  41;  Act  March  3,  1911,  c.  231, 
sec.  41,  36  Stat.  1100.) 

(c)  Offenses  begun  in  one  district  and  completed  in 
another. — When  any  offense  against  the  United  States  is 
begun  in  one  judicial  district  and  completed  in  another, 
it  shall  be  deemed  to  have  been  committed  in  either,  and 
may  be  dealt  with,  inquired  of,  tried,  determined,  and 
punished  in  either  district,  in  the  same  manner  as  if  it 
had  been  actually  and  wholly  committed  therein.  (R. 
S.  sec,  731;  J.  C.'sec.  42;  Act  March  3,  1911,  c.  231,  sec. 
48,  36  Stat.  1100.) 

(d)  Suits  for  penalties  and  forfeitures,  where  brought. 
— All  pecuniary  penalties  and  forfeitures  may  be  sued  for 
and  recovered  either  in  the  district  where  they  accrue 
or  in  the  district  where  the  offender  is  found.  (R.  S.  sec. 
732;  J.  C.  sec.  43;  Act  March  3,  1911,  c.  231,  sec.  43,  36 
Stat.  1100.) 

(e)  Suits  for  internal-revenue  taxes,  where  brought. — 
Taxes  accruing  under  any  law  providing  internal  reve- 
nue may  be  sued  for  and  recovered  either  in  the  district 
where  the  liability  for  such  tax  occurs  or  in  the  district 


692  Federal  Criminal  Law  Procedure. 

where  the  delinquent  resides.     (R.  S.  sec.  733;  J.  C.  sec. 
44;  Act  March  3,  1911,  c.  231,  sec.  44,  36  Stat.  1100.) 

(f)  Seizures,  where  cognizable. — Proceedings  on 
seizure  made  on  the  high  seas,  for  forfeiture  under  any 
law  of  the  United  States,  may  be  prosecuted  in  any  dis- 
trict into  which  the  property  so  seized  is  brought  and 
proceedings  instituted.  Proceedings  on  such  seizure 
made  within  any  district  shall  be  prosecuted  in  the  dis- 
trict where  the  seizure  is  made,  except  in  cases  where  it 
is  otherwise  provided.  (R.  S.  sec.  734;  J.  C.  sec.  45; 
Act  March  3,  1911,  c.  231,  sec.  45,  36  Stat.  1100.) 

(g)  Capture  of  insurrectionary  property,  where  cog- 
nizable.— Proceedings  for  the  condemnation  of  any  prop- 
erty captured,  whether  on  the  high  seas  or  elsewhere 
out  of  the  limits  of  any  judicial  district,  or  within  any 
district,  on  account  of  its  being  purchased  or  acquired, 
sold  or  given,  with  intent  to  use  or  employ  the  same,  or 
to  suffer  it  to  be  used  or  employed,  in  aiding,  abetting, 
or  promoting  any  insurrection  against  the  Government 
of  the  United  States,  or  knowingly  so  used  or  employed 
by  the  owner  thereof,  or  with  his  consent,  may  be  prose- 
cuted in  any  district  where  the  same  may  be  seized,  or 
into  which  it  may  be  taken  and  proceedings  first  institut- 
ed. (R.  S.  sec.  735;  J.  C.  sec.  46;  Act  March  3,  1911,  c. 
231,  sec.  46,  36  Stat.  1100.) 

(h)  Certain  seizures  cognizable  in  any  district  into 
which  the  property  is  taken. — Proceedings  on  seizures 
for  forfeiture  of  any  vessel  or  cargo  entering  any  port 
of  entry  which  has  been  closed  by  the  President -in  pur- 
suance of  law,  or  of  goods  and  chattels  coming  from  a 
State  or  section  declared  by  proclamation  of  the  Presi- 
dent to  be  in  insurrection  into  other  parts  of  the  United 
States,  or  of  any  vessel  or  vehicle  conveying  such  prop- 
erty, or  conveying  persons  to  or  from  such  State  or  sec- 
tion, or  of  any  vessel  belonging,  in  whole  or  in  part,  to 
any  inhabitant  of  such  State  or  section,  may  be  pros- 
ecuted in  any  district  into  which  the  property  so  seized 
may  be  taken  and  proceedings  instituted;  and  the  district 
court  thereof  shall  have  as  full  jurisdiction  over  such 
proceedings  as  if  the  seizure  was  made  in  that  district. 


Other  Offenses  693 

(E.  S.  sec.  564;  J.  C.  sec.  47;  Act  March  3,  1911,  c.  231, 
sec.  47,  36  Stat.  1100.) 

Sec.  415zz.  Carriers — Indictment  for  Falsifying  Ac- 
counts of  Interstate  Carrier. 

An  indictment  under  Interstate  Commerce  Act  of  Feb. 
4,  1887,  Compiled  Statutes,  8592,  for  falsifying  the  rec- 
ords of  an  interstate  carrier  need  not  charge  that  such 
records  were  records  prescribed  by  the  Interstate  Com- 
merce Commission,  Kennedy  vs.  U.  S.,  275  F.  183. 


CHAPTER  XXIV. 

FORM   OP  INDICTMENT. 

Form  or  Indictment  under  Section   225,   old  Sectio 
4046,  etc.,  for  embezzlement: 

"The  United   States  of  America. 

"At  a  District  Court  of  the  United  States  of  America,  for  the  Dis- 
trict of  Massachusetts,  begun  and  holden  at  Boston,  within  and  for 
said  district,  on  the  first.  Tuesday  of  December  in  the  year  of  our 
Lord  one  thousand  nine  hundred  and  nine. 

"First  Count.  The  jurors  for  the  United  States  of  America,  within 
and  for  the  District  of  Massachusetts,  upon  their  oath,  present  that 
Frank  H.  Mason,  of  Boston,  in  said  district,  during  all  of  the  year 
nineteen  hundred  and  eight,  was,  and  ever  since  then  has  been,  an 
officer  of  jthe  United  States,  to  wit,  clerk  of  the  District  Court  of  the 
United  States  for  the  District  of  Massachusetts,  and,  on  the  first  day 
of  February,  in  the  year  nineteen  hundred  and  nine,  had  in  his  pos- 
session and  under  his  control,  to  wit,  at  Boston  aforesaid,  certain 
money  of  the  United  States,  a  particular  description  whereof  is  to 
said  grand  jurors  unknown,  to  the  amount  and  value  of  three  hundred 
and  eighty-seven  dollars,  which  during  said  year  nineteen  hundred 
and  eight  had  come  into  his  possession  and  under  his  control  in  the 
execution  of  his  office  as  such  officer  and  clerk,  and  under  authority 
and  claim  of  authority  as  such  officer  and  clerk,  and  which  he  should, 
on  said  first  day  of  February,  in  the  year  nineteen  hundred  and  nine, 
have  accounted  for  and  paid  to  the  United  States  at  Boston  aforesaid 
in  the  manner  provided  by  law;  and  that  said  Frank  H.  Mason,  on 
said  first  day  of  February,  in  the  year  nineteen  hundred  and  nine,  at 
Boston  aforesaid,  the  same  money  unlawfully  and  feloniously  did 
embezzle. 

"Second  Count.  And  the  jurors  aforesaid,  on  their  oath  aforesaid, 
do  further  present,  that  said  Frank  H.  Mason  during  all  of  the  year 
nineteen  hundred  and  eight  was,  and  ever  since  has  been,  an  officer 
of  the  United  States,  to  wit,  clerk  of  the  District  Court  of  the  United 
States  for  the  district  of  Massachusetts,  and  on  said  first  day  of 
February,  in  the  year  nineteen  hundred  and  nine,  had  in  his  possession 
ami  under  his  control,  to  wit,  at  Boston  aforesaid,  certain  public 
moneys  of  the  United  States,  a  particular  description  whereof  is  to 
said  grand  jurors  unknown,  to  wit,  moneys  to  the  amount  and  of 
the  value  of  three  hundred  and  eighty-seven  dollars,  which  during 
said  year  nineteen  hundred  and  eight  had  come  into  his  possession 
and  under  his  control  in  the  execution  of  his  office  as  such  officer, 
and  under  authority  and  claim  of  authority  as  such  officer,  and  were 
a  portion  of  a  surplus  of  fees  and  emoluments  of  his  said  office  over 
and  above  the  compensation  and  allowances  authorized  by  law  to  be 

(694) 


Form  of  Indictment  695 

retained  by  him  for  said  year  nineteen  hundred  and  eight,  which 
said  public  moneys  said  Frank  H.  Mason,  on  said  first  dav  of  February, 
in  the  year  nineteen  hundred  and  nine,  as  such  officer  was  charged, 
by  certain  acts  of  Congress,  to  wit,  sections  82.°,,  828,  and  844.  of 
the  Revised  Statutes  of  the  United  States,  and  the  Act  approved 
June  28,  1902,  32  Statutes  at  Large,  chapter  1301,  and  by  divers  other 
Acts  of  Congress,  safely  to  keep;  that  said  Frank  H.  Mason,  on  said 
first  day  of  February,  in  the  year  nineteen  hundred  a->d  nine,  at 
Boston  aforesaid,  the  same  public  moneys  unlawfully  did  fail  safely 
to  keep  as  required  by  said  Acts  of  Congress,  and,  on  the  contrary, 
the  same  then  and  there  unlawfully  did  convert  to  his  own  use,  and 
that  thereby  said  Frank  H.  Mason  then  and  there  was  gu'lty  of  em- 
bezzlement of  said  public  moneys  so  converted." 

For  Loss  of   Life    by  Misconduct    of  Officers,    Owners, 
Charterers,  Inspectors,  Etc.,  of  Vessels,  Under 

Section  282. 

(Approved  in  U.  S.  vs.  Van  Schaick,  134  Federal,  594.,' 
Indictment  No.  1  charges  that  Van  Schaick  w?s — 
Guilty  of  misconduct,  negligence  and  inattention  to 
duty  on  such  vessel  as  such  master  and  captain,  in  that 
he  then  and  there  unlawfully  had  and  kept  on  said  vessel, 
among  other  life  preserves,  adjustable  to  the  bodies  of 
human  beings,  which  had  been  place  thereon  for  the  use 
of  the  passengers  and  other  persons  on  board  of  the  said 
vessel  in  case  of  emergency,  and  intended  for  such  use, 
divers,  to  wit,  nine  hundred  and  upwards,  unsuitable, 
inefficient,  and  useless  life  preserves;  that  is  to  say,  in 
the  respect  that,  according  to  the  laws  relating  thereto, 
and  the  regulations  thereunder,  the  said  life  preserves 
on  said  vessel  were  required  to  be  in  good  order  and 
accessible  for  immediate  use,  adjustable  to  the  bodies  of 
passengers,  and  made  of  good  sound  cork  blocks,  or 
other  suitable  material,  with  belts  and  shoulder-straps 
properly  attached  in  the  manner  prescribed  by  the  laws 
of  Congress  relating  thereto  and  the  rules  and  regula- 
tions thereunder  as  aforesaid,  and  that  every  such  life 
preserver  should  contain  at  least  six  pounds  of  good  cork, 
which  should  have  bouyancy  of  at  least  four  pounds 
to  each  pound  of  cork;  but  in  truth  and  in  fact,  large 
numbers  of  the  same,  to  the  amount  of  nine  hundred  and 
upwards,  as  aforesaid,  through  the  unlawful  misconduct, 


696  Federal  Criminal  Law  Procedure. 

negligence,  and  inattention  to  his  duties  by  the  said 
master  and  captain  as  aforesaid  were  unsafe,  unsuitable, 
and  unservicable,  so  that,  at  the  times  aforesaid,  while 
the  said  William  H.  Van  Schaick  was  master  and  captain 
as  aforesaid,  of  the  said  steamboat,  the  said  life  pre- 
servrs,  in  large  numbers,  to  wit,  nine  hundred  of  the 
same  and  upwards,  were  utterly  useless  for  the  protec- 
tion and  saving  of  human  life,  in  that,  in  many  instances, 
the  covers  thereof  were  rotten,  and  not  of  sufficient 
strength  and  soundness  to  make  them  impervious  to 
water,  and  the  shoulder-straps  and  bands  of  the  same 
were  so  decayed  that  it  was  impossible  to  securely  fasten 
the  said  life  preserves  to  the  human  body;  and  the  said 
life  preservers  did  not  have  the  buoyancy  required  by 
law;  and  the  unsuitability  and  the  inefficiency  and  use- 
lessness  of  the  said  life  preservers  for  the  purpose  which 
they  were  intended  to  serve  should  have  been  known  to 
the  said  William  H.  Van  Schaick,  and  he  might,  by  the 
exercise  of  ordinary  observation  and  inquiry,  have  ascer- 
tained the  same,  and  should  so  have  ascertained  before 
the  said  vessel  started  on  the  excursion  hereinafter  men- 
tioned; and  which  said  unsuitable  and  inefficient  ap- 
pliances, he,  the  said  William  H.  Van  Schaick,  notwith- 
standing the  premises,  unlawfully  caused,  suffered,  and 
permitted  to  be  and  remain  on  said  vessel,  and  he  was 
guilty  of  misconduct,  negligence  and  inattention  to  his 
duties  upon  said  vessel,  in  that  he  permitted  the  said 
vessel  to  go,  and  took  the  said  vessel,  on  said  excursion, 
with  the  said  unsuitable  and  inefficient  life  preservers  on 
board,  and  caused,  suffered,  and  permitted  the  same  to 
be  tendered  and  held  out  for  the  use  of  the  passengers 
and  other  persons  on  board  of  said  steamboat,  at  the 
time  of  her  destruction  by  fire  as  hereinafter  mentioned. 

For  Conspiracy  to  Violate  the  Lottery  Statute. 

(Champion  vs.  Ames,  47  Law  Ed.,  496.) 

The  indictment  charged,  in  its  first  count,  that  on  or 
about  the  1st  day  of  February,  A.  D.  1899,  in  Dallas 
County  Texas,  "C.  F.  Champion,  alias  W.  W.  Ogden,  W. 
F.  Champion,  and  Charles  B.  Park,  did  then  and  there 


Form  of  Indictment  697 

unlawfully,  knowingly,  and  feloniously  conspire  together 
to  commit  an  offense  against  the  United  States,  to  wit, 
for  the  purpose  of  disposing  of  the  same,  to  cause  to  be 
carried  from  one  state  to  another  in  the  United  States, 
to  wit,  from  Dallas,  in  the  State  of  Texas,  to  Fresno,  in 
the  State  of  California,  certain  papers,  certificates,  and 
instrument  purporting  to  be  and  representing  tickets,  as 
they  then  and  there  well  knew,  chances,  shares,  and  in- 
terests in  and  dependent  upon  the  event  of  a  lottery, 
offering  prizes  dependent  upon  lot  and  chance,  that  is  to 
say,  caused  to  be  carried,  as  aforesaid,  for  the  purpose 
of  disposing  of  the  same,  papers,  certificates,  or  instru- 
ments purporting  to  be  tickets  to  represent  the 
chances,  shares,  and  interests  in  the  prizes  which  by  lot 
and  chance  might  be  awarded  to  persons,  to  these  grand 
jurors  unknown,  who  might  purchase  said  papers,  certifi- 
cates, and  instruments,  representing  and  purporting  to 
be  tickets,  as  aforesaid,  with  the  numbers  thereon  shown 
and  indicated  and  printed,  which  by  lot  and  chance  should 
on  a  certain  day,  draw  a  prize  or  prizes  at  the  purport- 
ed lottery  or  chance  company,  to  wit,  at  the  purported 
monthly  drawing  of  the  so-called  Pan-American  Lot- 
tery Company,  which  purported  to  draw  monthly  at 
Asuncion,  Paraguay,  which  said  Pan-American  Lottery 
Company  purported  to  be  an  enterprise  offering  prizes 
dependent  upon  lot  and  chance,  the  specified  method  of 
such  drawing  being  unknown  to  the  grand  jurors,  but 
which  said  papers,  certificates,  and  instruments  purport- 
ing to  be  and  representing  tickets  upon  their  face  purport- 
ing to  be  entitled  to  participation  in  the  drawing  of  a 
certain  capital  prize  amounting  to  the  sum  of  $32,000,  and 
which  said  drawings  for  said  capital  prize,  or  the  part  or 
parts  thereof  allotted  or  to  be  allotted  in  conformity  with 
the  scheme  of  lot  and  chance,  were  to  take  place  monthly, 
the  manner  and  form  of  which  is  to  the  grand  jurors  un- 
known, but  that  said  drawing  and  lot  and  chance  by 
which  said  prize  or  prizes  were  to  be  drawn  was  purport- 
ed to  be  under  the  supervision  and  direction  of  Enrigue 
Montes  de  Leon,  manager,  and  Bernardo  Lopez,  interven- 
er, and  which  said  papers,  certificates,  and  instruments 
purporting  to  be  tickets  of  the  said  Pan-American  Lot- 


098  Federal  Criminal  Law  Procedure. 

tery  Company  were  so  divided  as  to  be  called  whole, 
half,  quarter,  and  eighth  tickets,  the  whole  tickets  to 
be  sold  for  the  sum  of  $2,  the  half  tickets  for  the  sum  of 
$1,  the  quarter  tickets  for  the  sum  of  50  cents,  and  the 
eighth  tickets  for  the  sum  of  25  cents." 

The  indictment  further  charged  that  "in  pursuance  to 
said  conspiracy,  and  to  effect  the  object  thereof,  to  wit, 
for  the  purpose  of  causing  to  be  carried  from  one  state 
to  another  in  the  United  States,  to  wit,  from  the  State 
of  Texas  to  the  State  of  California  aforesaid,  for  the  pur- 
pose of  disposing  of  the  same,  papers,  certificates,  and 
instruments  purporting  to  be  and  representing  tickets, 
chances,  and  shares  and  interests  in  and  dependent  upon 
lot  and  chance,  as  aforesaid,  as  they  then  and  there  well 
knew,  said  W.  F.  Champion  and  Charles  B.  Pard  did 
then  and  there,  to  wit,  on  or  about  the  last  day  aforesaid, 
in  the  Dallas  Division  of  the  Northern  District  of  Texas 
aforesaid,  unlawfully,  knowingly,  and  feloniously,  for 
the  purpose  of  being  carried  from  one  State  to  another 
in  the  United  States,  to  wit,  from  Dallas,  in  the  State 
of  Texas,  to  Fresno,  in  the  State  of  California,  for  the 
purpose  of  disposing  of  the  same,  deposit  and  cause  to 
be  deposited  and  shipped  and  carried  with  and  by  the 
Wells-Fargo  Express  Company,  a  corporation  engaged 
in  carrying  freight  and  packages  from  station  to  station 
along  and  over  lines  of  railway,  and  from  Dallas,  Texas, 
to  Fresno,  California,  for  hire,  one  certain  box  or  pack- 
age containing,  among  other  things,  two  whole  tickets 
or  papers  or  certificates  of  said  purported  Pan-American 
Lottery  Company,  one  of  which  said  whole  tickets  is 
hereto  annexed  by  the  grand  jury  to  this  indictment  and 
made  a  part  hereof. ' ' 
Under    Section    5508,    Conspiracy    to    Endanger,    Etc., 

Citizens  in  the  Exercise  of  Civil  Rights. 
(157  Federal,  page  722.) 

Omitting  formal  parts,  the  eleventh  count  of  the  in- 
dictment is  as1  follows: 

That  on  the  1st  day  of  June,  1906,  the  defendants 
(naming  them)  did  unlawfully  and  feloniously  conspire, 


Form  or  Indictment  699 

combine,  confederate,  and  agree  together  to  injure,  op- 
press, threaten  and  intimidate  a  certain  citizen  of  the 
United  States,  to  wit,  John  Reed,  in  the  free  exercise  and 
enjoyment  of  rights  and  privileges  secured  to  him  by 
the  Constitution  and  laws  of  the  United  States,  to  wit, 
the  right  to  the  free  exercise  and  enjoyment  of  freedom 
from  involuntary  servitude  and  slavery;  that  in  pur- 
suance of  said  unlawful  and  felonious  conspiracy,  com- 
bination, confederation,  and  agreement,  and  to  effect  the 
object  thereof,  the  said  defendants  (naming  them)  did 
then  and  there  unlawfully  and  feloniously  arrest,  hold, 
imprison,  and  guard  him,  the  said  John  Reed,  and  then 
and  there  unlawfully  and  feloniously  compel  by  threats 
and  intimidation  him,  the  said  John  Reed,  to  then  and 
there  work  and  labor  involuntarily  and  against  his  will 
for  said  defendants  (naming  them),  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  United  States. 

Under  Peonage  Statute. 

(United  States  vs.  McClellan,  127  Federal,  page  971.) 
The  grand  jurors  of  the  United  States,  selected, 
chosen,  and  sworn  in  and  for  the  Eastern  Division  of  the 
Southern  District  of  Georgia,  upon  their  oaths  present: 
That  heretofore,  to  wit,  on  the  eleventh  day  of  August 
in  the  year  of  our  Lord  one  thousand  nine  hundred  and 
two,  one  Thomas  J.  McClellan,  late  of  said  division  and 
district,  within  said  division  and  district,  and  within  the 
jurisdiction  of  this  Court,  did  then  and  there  knowingly 
and  unlawfully  cause  one  John  Wesley  Boney  to  be  held 
to  a  condition  of  peonage;  for  that  the  said  Thomas  J. 
McClellan  in  the  county  of  Ware,  in  the  State  of  Georgia, 
did  forcibly  seize  the  body  of  the  said  John  Wesley 
Boney,  without  his  consent  and  without  authority  of 
law,  and  did  then  and  there  sell  the  body  of  the  said 
John  Wesley  Boney,  without  his  consent  and  without 
authority  of  law,  to  Edward  J.  McRee,  William  McRee, 
and  Frank  I.  McRee,  then  and  there  causing  him,  th 
said  John  Wesley  Boney,  to  be  held  by  the  said  Edward 
J.  McRee,  William  McRee,  and  Frank  I.   McRee  to  a 


700  Federal  Criminal,  Law  Procedure. 

condition  of  peonage;  for  that  the  said  Edward  J.  Mc- 
Ree, William  McRee  and  Frank  I.  McRee  then  and  there 
having  obtained  the  custody  of  the  body  of  the  said  John 
Wesley  Boney,  did  then  and  there,  by  force  and  against 
the  will  of  him,  the  said  John  Wesley  Boney,  and  with- 
out authority  of  law,  transport  the  body  of  the  said  John 
Wesley  Boney  to  the  county  of  Lowndes,  in  said  State, 
and  did  then  and  there  hold  the  said  John  Wesley  Boney, 
against  his  will,  to  labor  for  them,  to  work  out  a  debt 
which  they,  the  said  Edward  J.  McRee,  William  Mc- 
Ree, and  Frank  I.  McRee,  claimed  to  be  due  them  by 
the  said  John  Wesley  Boney,  and  to  labor  under  the 
terms  of  an  alleged  cantract  between  them,  the  said  Ed- 
ward J.  McRee,  William  McRee,  and  Frank  I.  McRee, 
and  the  said  John  Wesley  Boney;  he,  the  said  Thomas 
J.  McClellan,  then  and  there  well  knowing  that  the  said 
John  Wesley  Boney  would  be  so  held  as  aforesaid  by 
the  said  Edward  J.  McRee,  William  McRee,  and  Frank 
I.  McRee;  whereby,  in  the  manner  aforesaid,  the  said 
Thomas  J.  McClellan  did  cause  the  said  John  Wesley 
Boney  to  be  held  to  a  condition  of  peonage,  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  United  States. ' ' 

For  Returning  One  to  Peonage. 

(Page  727,  49  Law  Ed.;  approved  in  Clyatt  vs.  U.  S.,  by 
the  Supreme  Court,  197  U.  S.,  207.) 

The  grand  jurors  of  the  United  States  of  America  im- 
paneled and  sworn  within  and  for  the  district  aforesaid, 
on  their  oaths  present  that  one  Samuel  M.  Clyatt,  here- 
tofore, to  wit:  on  the  eleventh  day  of  February,  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and  one, 
in  the  county  of  Levy,  State  of  Florida,  within  the  dis- 
trict aforesaid,  and  within  the  jurisdiction  of  this  court, 
did  then  and  there  unlawfully  and  knowingly  return  one 
Will  Gordon  and  one  Mose  Ridley  to  a  condition  of 
peonage,  by  forcibly,  and  against  the  will  of  them,  the 
said  Will  Gordon  and  the  said  Mose  Ridley,  returning 
them,  the  said  Will  Gordon  and  Mose  Ridley,  to  work 
to  and  for  Samuel  M.  Clyatt  and  H.  H.  Tift,  co-partners 


Form  of  Indictment  701 

doing  business  under  the  firm  name  and  style  of  Clyatt 
&  Tift,  to  be  held  by  them,  the  said  Clyatt  &  Tift,  to 
work  out  a  debt  claimed  to  be  due  to  them,  the  said  Clyatt 
&  Tift,  by  the  said  Will  Gordon  and  Mose  Kidley;  contrary 
to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  United 
States." 

For  Polygamy,    Under   Section  313,    Approved   by  Su- 
preme Court  in  Cannon  vs.  United  States,  116 
U.  S.,  55,  29  Law  Ed.,  563. 

The  grand  jury  of  the  United  States  of  America,  with- 
in and  for  the  district  aforesaid,  in  the  territory  afore- 
said, being  duly  empaneled  and  sworn,  on  their  oaths 
do  find  and  present:  that  Angus  M.  Cannon,  late  of  said 
district,  in  the  territory  aforesaid,  to  wit:  on  the  first 
day  of  June,  in  the  year  of  our  Lord  1882,  and  on  divers 
other  days  and  continuously  between  the  said  first  day 
of  June,  A.  D.  1882,  and  the  first  day  of  February,  A.  D. 
1885,  at  the  County  of  Salt  Lake  and  Territory  of  Utah, 
did  unlawfully  cohabit  with  more  than  one  woman,  to 
wit:  one  Amanda  Cannon  and  one  Clara  C.  Mason,  some- 
times known  as  Clara  C.  Cannon,  against  the  form  of  the 
statute  of  the  said  United  States  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  same. 

Under  Section  3242  as   Amended  Illegal   Retail  Liquor 

Dealer,  Approved  in  Ledbetter  vs.  U.  S.,  170 

U.  S.,  608,  42  Law  Ed.,  1162. 

That  Lewis  Ledbetter,  late  of  said  district,  heretofore, 
to  wit,  on  the  10th  day  of  April,  A.  D.  1896,  in  the  County 
of  Appanoose,  and  town  of  Dallas,  in  the  Southern  Dis- 
trict of  Iowa,  and  within  the  jurisdiction  of  this  Court, 
did  then  and  there  wilfuly,  unlawfully,  and  feloniously 
carry  on  the  business  of  a  retail  liquor  dealer  without 
first  having  paid  the  special  tax  therefor,  as  required 
by  law,  contrary  to  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  United 
States  of  America. 


702  Federal  Criminal  Law  Procedure. 

For  Sale  of  Oleomargarine  Not  Properly  Marked  and 

Branded;  Approved  in  Ex  Parte  Kollock,  165 

U.  S.,  526,  Law  Ed.,  814. 

The  first  indictment  against  Kollock  set  forth  that  pur- 
suant to  the  authority  conferred  on  the  Commissioner 
of  Internal  Revenue  by  the  6th  section  of  the  Act  of 
August  2,  1886,  "the  said  commissioner,  with  the  ap- 
proval of  the  Secretary  of  the  Treasury,  did,  on  the 
twelfth  day  of  March,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  ninety-one,  proscribed  certain  re 
gulations,  in  substance  and  to  the  effect,  among  other 
things,  that  the  wooden  or  paper  packages  in  which  re- 
tail dealers  in  oleomargarine  were  required  by  said  Act 
of  Congress  to  pack  the  oleomargarine  sold  by  them, 
such  retail  dealers,  should  have  printed  or  branded  upon 
them  in  the  case  of  each  sale,  the  name  and  address  of 
the  retail  dealer  making  the  same;  likewise,  the  words 
'pound'  and  'oleomargarine'  in  letters  not  less  than  one- 
fourth  of  one  inch  square,  and  likewise  a  figure  or 
figures  of  the  same  size,  indicating  (in  connection  with 
the  said  words  'pound'  and  'oleomargarine'),  the  quan- 
tity of  oleomargarine  so  sold,  written,  printed,  or  brand- 
ed on  such  wooden  or  paper  packages  and  placed  be- 
fore the  said  word  'pound,'  and  that  the  said  words  'oleo- 
margarine' and  'pound'  so  required  to  be  printed  or 
branded  on  such  packages  as  aforesaid  in  the  case  of 
each  sale  as  aforesaid,  and  the  said  figure  or  figures  so 
indicative  of  quantity  as  aforesaid  in  the  case  of  each 
sale  as  aforesaid,  and  so  required  to  be  written,  printed, 
or  branded  on  such  packages  as  aforesaid  should  be  so 
placed  thereon  as  to  be  plainly  visible  to  the  purchaser 
at  the  time  of  the  delivery  to  him,  such  purchaser,  by  re- 
tail dealers  of  the  oleomargarine  sold  to  such  purchaser 
by  them,  such  retail  dealers." 

And  thus  continued : 

"That  on  the  fourteenth  day  of  January,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  ninety-six,  and  at  the  District  afore- 
said, one  Israel  C.  Kollock,  late  of  the  District  aforesaid,  being  then 
and  there  engaged  in  business  as  a  retail  dealer  in  oleomargarine, 
at  a  store  of  him,  the  said  Israel  C.  Kollock,  situated  on  Fourth  Street, 
southeast,   in  the  city  of  Washington,   in   the   said   district,   did   then 


Form  of  Indictment  703 

and  there,  and  at  said  store  knowingly  sell  and  leliver  to  a  certain 
Florence  Davis  one-half  of  one  pound  of  olemargarine  as  and  for 
butter,  which  said  one-half  of  one  pound  of  olemargarine  was  not 
then  and  there  and  at  the  time  of  such  sale  and  delivery  thereof, 
packed  in  a  new  wooden  or  paper  package  having  then  and  there  print- 
ed or  branded  thereon  the  name  and  address  of  him,  the  said  Israel 
C.  Kollock,  in  letters  one-fourth  of  one  inch  square,  and  the  words 
'pound'  and  'olemargarine'  in  letters  of  like  size,  and  a  figure  or  fig- 
ures of  like  size  written,  printed,  or  branded  thereon  indicative  (in 
connection  with  the  said  words  'pound'  and  'oleomargarine')  of  the 
quantiity  of  oleomargarine  so  sold  and  delivered  to  her,  the  said 
Florence  Davis,  as  aforesaid,  and  which  said  one-half  of  one  pound 
of  oleomargarine  at  the  time  it  was  so  knowingly  sold  and  delivered 
to  her,  the  said  Florence  Davis,  as  aforesaid,  by  him,  the  said  Israel 
C.  Kollock,  as  aforesaid,  was  then  and  there  and  at  the  time  of  the 
sale  and  delivery  thereof  as  aforesaid  packed  in  a  paper  package 
upon  which  there  had  not  been  printed,  branded,  or  written  any  or 
either  of  the  marks  and  characters  aforesaid  so  required  by  the 
said  regulations  to  be  placed  thereon  as  aforesaid  as  he,  the  said  Israel 
C.  Kollock,  then  and  there  well  knew,  against  the  form  of  the  statute, 
etc.,  etc." 

For  Conspiracy  to  Violate  Section  5358,  to  Plunder  or 
Steal  from  Vessel,  (7  Federal,  716). 

The  indictment  alleges  that  the  defendants — 

"Did  conspire,  combine,  confederate,  and  agree  together  between 
and  among  themselves,  to  plunder  certain  goods  and  merchandise, 
a  more  particular  description  of  which  said  goods  and  merchandise 
being  to  the  grand  jurors  aforesaid  unknown,  then  and  there  belong- 
ing to  the  steamboat  City  of  Vicksburg,  the  said  steamboat  being  then 
and  there  wrecked  and  in  distress  on  the  waters  of  the  Mississippi 
River,  within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  while  engaged  in  commerce  and  navigation  in  said  river,  to 
wit,  between  Vicksburg,  in  the  State  of  Mississippi,  and  St.  Louis, 
in  the  State  of  Missouri;  and  that,  to  effect  the  object  of  the  said 
conspiracy  the  said  Hercules  Sanche  then  and  there  furnished  and 
loaned  to  the  said  John  Woods  and  Elias  Boatright  a  certain  skiff 
to  be  used  by  them,  the  said  Woods  and  the  said  Boatright,  in  plun- 
dering said   goods  and   merchandise  from  the  said  steamboat." 

Under  Section  5438,  (Bridgeman  vs.  United  States,  140 

Federal,  578). 

The  twenty-first  count  is  in  these  words: 

"And  the  grand  jurors  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  find,  charge  and  present:     That  one   Morris  L. 


704  Federal  Criminal  Law  Procedure. 

Bridgeman,  late  of  the  State  and  district  of  Montana,  before  and  on 
the  5th  day  of  October,  A.  D.  1901,  and  thenceforth  until  and  on  and 
after  the  31st  day  of  January,  A.  D.  1902,  was  then  and  there  the 
United  States  Indian  Agent  at  and  of  the  Fort  Belknap  Indian  reser- 
vation, in  the  State  and  district  of  Montana.  That  on  the  said  31st 
day  of  January,  A.  D.  1902,  in  the  State  and  district  of  Montana,  the 
said  Morris  L.  Bridgeman,  United  States  Indian  Agent  as  aforesaid, 
did  then  and  there  knowingly,  wilfully,  and  unlawfully  make  and 
cause  to  be  made,  and  present  and  cause  to  be  presented  for  approval, 
to  the  Commissioner  of  Indian  Affairs  of  the  United  States,  being  then 
and  there  an  officer  of  the  civil  service  of  the  United  States,  a  false, 
fictitious,  and  fraudulent  claim  upon  and  against  the  government  of 
the  United  States  for  the  sum  of  two  hundred  and  eighty-five  dollars 
and  eighty-eight  cents;  that  is  to  say,  a  certain  claim  purporting 
that  the  said  Morris  L.  Bridgeman,  as  United  States  Indian  Agent 
as  aforesaid,  had  then  and  there  expended  and  paid  the  said  sum  of 
two  hundred  and  eighty-five  dollars  and  eighty-eight  cents  to  two 
certain  Indians,  to  wit,  Turns  Around  and  Bracelet,  in  payment  of 
fourteen  thousand  two  hundred  and  ninety-four  feet  of  rough  lumber, 
and  that  the  said  aggregate  sum  of  two  hundred  and  eighty-five  dol- 
lars and  eighty-eight  cents  had  been  so  expended  and  paid  by  said 
Morris  L.  Bridgeman,  as  United  States  Indian  Agent,  as  aforesaid 
by  paying  to  said  Indian,  Turns  Around,  the  sum  of  eighty-five  dollars 
and  eighty-eight  cents  for  four  thousand  two  hundred  and  ninety- 
four  feet  of  rough  lumber,  and  by  paying  to  said  Indian,  Bracelet, 
the  sum  of  two  hundred  dollars  for  ten  thousand  feet  of  rough  lumber. 
That  the  said  claim  was  then  and  there,  to  wit,  at  the  time  of  the 
making  and  presenting  thereof  as  aforesaid,  false,  fictitious,  and 
fraudulent  in  this:  that  the  said  Morris  L.  Bridgeman,  United  States 
Indian  Agent,  as  aforesaid,  had  not  paid  the  said  sum  of  two  hundred 
and  eighty-five  dollars  and  eighty-eight  cents  to  said  Indians,  Turns 
Around  and  Bracelet,  or  either  of  them,  in  payment  of  fourteen 
thousand  two  hundred  and  ninety-four  feet  of  rough  lumber,  and  had 
not  paid  to  said  Indian,  Turns  Around,  the  sum  of  eighty-five  dollars 
and  eighty-eight  cents  for  four  thousand  two  hundred  and  ninety- 
four  feet  of  rough  lumber,  and  had  not  paid  to  said  Indian;  Bracelet, 
the  sum  of  two  hundred  dollars  for  ten  thousand  feet  of  rough  lumber; 
and  that  the  said  Morris  L.  Bridgeman,  United  States  Indian  Agent, 
as  aforesaid,  was  not  then  and  there  entitled  to  have  the  said  claim, 
so  made  and  presented  by  him,  as  aforesaid,  approved,  he,  the  said 
Morris  L.  Bridgeman,  United  States  Indian  Agent,  as  aforesaid,  at 
the  time  of  so  making  and  presenting  the  said  claim,  then  and  thera 
well  knowing  the  same  to  be  false,  fictitious,  and  fraudulent.  And 
so  the  grand  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  say 
that  the  said  Morris  L.  Bridgeman,  United  States  Indian  Agent,  as 
aforesaid,  in  the  State  and  district  of  Montana,  and  in  manner  and 
form  aforesaid,  did,  on  the  thirty-first  day  of  January,  A.  D.  1902, 
make  and  cause  to  be  made,  and  present  and  cause  to  be  presented, 


Form  of  Indictment  f05 

for  approval,  to  the  said  Commissioner  of  Indian  Affairs  of  the  United 
States,  a  claim  upon  and  against  the  Government  of  the  United  States, 
which  said  claim,  he,  the  said  Morris  L.  Bridgeman,  then  and  there 
well  knew  to  be  false,  fictitious  and  fraudulent,  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dginity  of  the  United  States  of  America." 

Under    Section    39,    (Vernon    vs.    United    States,    146 

Federal,  122). 

"That  J.  B.  Vernon,  whose  Christian  name  is  to  the  grand  jurors 
aforesaid  unknown,  on  the  1st  day  of  August,  in  the  year  1902,  in  the 
Northern  Division  of  the  Eastern  Judicial  District  of  Missouri,  and 
within  the  jurisdiction  of  this  court,  did  unlawfully,  feloniously,  and 
corruptly  offer  and  give  a  large  sum  (the  exact  amount  thereof  being  to 
the  grand  jurors  aforesaid  unknown)  of  the  lawful  money  of  the  United 
States  to  one  Charles  L.  Blanton,  who  was  then  and  there,  as  he  the  said 
J.  B.  Vernon  then  and  there  well  knew,  a  person  acting  for  and  on  be- 
half of  the  United  States  in  an  official  function  under  and  by  the 
authority  of  a  department  of  the  Government,  to  wit,  the  Treasury 
Department  of  the  United  States,  with  the  intent  then  and  there 
of  him,  the  said  J.  B.  Vernon,  to  unlawfully,  feloniously  and  corrupt- 
ly influence  the  action  of  the  said  Charles  L.  Blanton  on  a  matter 
then  and  there  pending  before  him  in  said  official  function  as  afore- 
said, that  is  to  say,  in  making  examination  of  and  reporting  and 
recommending  to  the  Secretary  of  the  Treasury  a  site  for  a  United 
States  post-office  at  Kirksville,  Missouri,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided  and  against  the  peace  and 
dignity  of  the  United   States." 

For  Larceny  of    Personal    Property  of    United    States, 

Under  Section  46,  (United  States  vs.  Jones, 

69  Federal,  973). 

The  first  count  of  the  indictment  charged  that  the  de- 
fendant, on  the  fifteenth  day  of  June,  1893,  and  before 
the  finding  of  this  indictment, — 

"Did  unlawfully  and  feloniously  take,  steal  and  carry  away  from 
the  United  States  Mint  at  Carson  City,  State  and  District  of  Nevada, 
personal  property,  to  wit,  gold  metal,  which  said  personal  property 
belonged  to  the  United  States  of  America,  and  which  said  personal 
property  was  of  the  value  of  $23,000;  the  said  unlawful  and  felo- 
nious taking  and  carrying  away  being  with  the  intent,  then  and  there, 
to  steal  the  said  property,  and  defraud  the  United  States  of  America 
thereof,"  etc. 
45 


706  Federal  Criminal  Law  Procedure. 

Under  Section  79,  (Green  vs.  United  States,  150  Federal, 

561). 

"He,  the  said  John  Francis  Green,  then  and  there  being  at  the  time 
and  place  of  said  registration  as  aforesaid,  came  in  person  before 
Frank  Asche  Faron,  then  and  there  and  before  that  time  being  a  depu- 
ty registrar  of  voters  at  said  registration  for  said  election  aforesaid, 
and  made  application  and  made  and  subscribed  an  affidavit  for  the 
purpose  of  causing  himself  to  be  registered  as  a  voter  at  said  regis- 
tration, for  said  election;  and  the  said  John  Francis  Green  so  making 
the  said  application  to  be  registered  as  said  registraton,  at  and  upon 
the  making  of  said  affidavit,  it  became  and  was  then  and  there  material 
to  know  whether  the  said  John  Francis  Green  had  been  naturalized 
as  a  citizen  of  the  United  States  of  America;  and,  thereupon,  the  said 
John  Francis  Green  then  and  therewas  in  due  manner  sworn  by  the 
said  Frank  Asche  Faron,  and  made  oath  before  him  then  and  there  of 
and  concerning  the  truth  of  the  matter  contained  in  the  said  affidavit; 
he,  the  said  Frank  Asche  Faron,  then  and  there  being  said  deputy 
registrar  of  voters  as  aforesaid,  and  having  then  and  there  competent 
authority  to  administr  the  said  oath  to  the  said  John  Francis  Green  in 
that  behalf;  and  the  said  John  Francis  Green  so  being  sworn  as 
aforesaid,  then  and  there,  in  and  by  his  said  affidavit,  wilfully,  cor- 
ruptly, and  falsely,  and  contrary  to  his  said  oath,  did  depose  and  swear, 
as  in  the  said  affidavit  set  forth,  that  he  was  naturalized  in  the  State 
of  California  on  the  8th  day  of  November,  in  the  year  1900,  whereas, 
in  truth  and  fact,  as  the  said  John  Francis  Green  well  knew  at  the 
time  he  was  so  sworn  and  made  affidavit,  as  aforesaid,  the  said  John 
Francis  Green  at  the  time  he  was  so  sworn  and  made  affidavit,  as 
aforesaid,  had  never  been  naturalized  as  a  citizen  of  the  United  States 
of  America,  and  was  an  alien." 

Under  Section  126,  Subornation  of  Perjury,   (Boren  vs. 
United  States,  144  Federal,  801). 

The  first  count  charges  that  the  accused,  ' '  on  the  four- 
teenth day  of  November,  in  the  year  of  our  Lord  one 
thousand  nine  hundred  and  four;  at  Redding,  in  the 
county  of  Shasta,  State  and  Northern  District  of  Cali- 
fornia, then  and  there  being,  did  then  and  there  unlaw- 
fully, wilfully,  knowingly,  and  feloniously  precure,  in- 
stigate, and  suborn  one  John  M.  Layton  to  appear  and 
take  an  oath  before  one  Frank  M.  Swasey  that  a  certain 
declaration  and  affidavit  by  him,  John  M.  Layton,  sub- 
scribed was  true,  said  declaration  and  affidavit  being  then 
and  there  a  matter  in  which  the  laws  of  the  United  States 
authorize  an  oath  to  be  administered — that  is  to  say, 


Form  of  Indictment  707 

a  sworn  statement, — for  the  purchase  of  timber  and 
stone  lands  described  therein  as  the  northwest  quarter 
of  Section  eight,  twonship  thirty-two  north,  of  range 
eight  west,  in  the  district  of  lands  subject  to  sale  at 
Redding,  California,  and  said  Frank  M.  Swasey  was 
then  and  there  an  officer  competent  to  administer  said 
oath— that  is  to  say,  the  register  of  the  United  States 
land  office  at  Redding— and  that,  in  accordance  with  said 
procurement,  instigation,  and  subornation,  the  said  Frank 
M.  Layton  did  appear  before  the  said  Frank  M.  Swasey 
and  take  an  oath  that  the  said  Harry  W.  Miller,  Frank 
E.  Kincart,  and  William  H.  Boren,  and  each  of  them, 
did  then  and  there  unlawfully,  wilfully,  knowingly,  and 
feloniously  procure,  instigate,  and  suborn  said  John  M. 
Layton  wilfully  and  contrary  to  his  oath  to  state  and 
subscribe  in  said  declaration  and  affidavit  a  certain  false 
and  untrue  material  statement  that  he,  John  M.  Lavton, 
had  personally  examined  the  lands  mentioned  in  said 
declaration  and  affidavit,  and  that  he  did  not  apply  to 
purchase  the  land  above  described  on  speculation,  but  in 
good  faith  to  appropriate  it  to  his  own  exclusive  use  and 
benefit,  and  that  he  had  not  directly  or  indirectly  made 
any  agreement  or  contract,  or  in  any  way  or  manner, 
with  any  person  or  persons  whomsoever,  by  which  the 
title  he  might  acquis  from  the  United  States  may  inure 
in  whole  or  in  part  to  the  benefit  of  any  person  except 
himself,  which  statement  he,  John  M.  Layton,  at  the 
time  of  stating  and  subscribing  the  same,  did  not  believe 
to  be  true,  and  knew  to  be  untrue,  in  this:  that  he,  John 
M.  Layton  had  not  personally  examined  said  lands,  and 
had  theretofore  entered  into  a  contract  for  the  sale  of 
said  land  to  the  Washington  Mill  &  Lumber  Company. 
And  that  the  said  Harry  W.  Miller,  Frank  E.  Kincart, 
and  William  H.  Boren,  and  each  of  them,  at  the  time  of 
the  aforesaid  procurement,  instigation,  and  subornation, 
well  knew  that  the  aforesaid  statement  was  a  false  and 
untrue  material  statement,  and  well  knew  that  said  John 
M.  Layton  did  not  believe  the  same  to  be  true. ' ' 


708  Fedekal  Criminal,  Law  Pboceduee. 

Under  Section  Clause  of  Section  5395,  False  Oath  in 

Naturalization,  (Moore  v.  United  States 

144  Federal,  962). 

"That  George  K.  Moore,  to  wit,  on  the  10th  day  of  November,  in  the 
year  of  our  Lord  nineteen  hundred  and  two,  in  the  said  district  and 
within    the   jurisdiction    of   said    court,    in    a   proceeding    for    natural- 
ization of  one  Setrack  G.  Moomjian,,  then  and  there  in  the  Common 
Pleas     Division     of    the     Supreme     Court     of     the     State     of     Rhode 
Island,  in  and  for  the  county  of  Providence  pending,  knowingly  and 
falsely  before  Alfred  0.  Makee,  a  notary  public  in  and  for  the  County 
of  Providence,  in  said  State  of  Rhode  Island,  duly  qualified  and  auth- 
orized to  administer  oaths  to  persons  making  affidavits  in  proceedings 
for  naturalization,  did  make  a  false  affidavit  touching  matters  in  issue, 
and  material   in   said   proceedings  for   the   naturalization  of   said    Se- 
trak  G.  Moomjian;    in  this,  to  wit,  that  he,  the  said  George  K.  Moore, 
in    said    affidavit    falsely    swore    that    he,    said    Setrak    G.    Moom: 
had   resided   in    Providence,    in   the   said    State   of   Rhode    Island,    for 
seven  years  last  past,  whereas  in  truth  and  in  fact,  the  said   Setrak 
G.  Moomjian  was  at  the  date  aforesaid,  to  wit,  on   the   10th  day  of 
November,  A.  D.  1902,  a  resident  of  the  commonwealth  of  Massachu- 
setts, to  wit,  the  city  of  Worcester,   and   was   not   a  resident   of  the 
State  of  Rhode  Island,  nor  had  he  been  such  resident  for  a  period  of 
more  than  one  year  next  before  the  10th  day  of  November,  A.  D.  1902. 
And  the  grand  jurors  aforesaid,  on  their  oath  aforesaid,  further  pre- 
sent that  said  affidavit  so  as  aforesaid  made  by  the  said   G     i" 
Moore  was  false  and  untrue,  and   was  by  the  said  George  K.  Moore 
known  to  be  so  false  and  untrue  at  the  time  of  the  making  thereof, 
and  that  the  said  George  K.  Moore  therein  swore  falsely  to  the  resi- 
dence of  said  Setrak  G.  Moomjian,  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided,  and  against  the  peace  and  dignity 
of  the  United   States." 

For  Murder   on  the  High   Seas,  (St.    Clair   vs.   United, 
States,  Book  38  Law  Ed.,  937). 

The  indictment  charged  that  Thomas  St.  Clair,  Her- 
man Sparf,  and  Hans  Hansen,  mariners,  late  of  that  dis- 
trict, on  the  13th  day  of  January,  1893,  with  force  and 
arms,  on  the  high  seas,  and  within  the  jurisdiction  of  the 
Court,  and  within  the  admiralty  and  maritime  jurisdic- 
tion of  the  United  States,  and  out  of  the  jurisdiction  of 
any  particular  State  of  the  United  States,  in  and  on  board 
of  an  American  vessel,  the  bark  Hesper,  belonging  to  a 
citizen  or  citizens  of  the  United  States,  whose  name  or 
names  are  or  were  to  the  grand  jurors  unknown,  did,  with 


Form  of  Indictment  709 

a  certain  instrument  or  weapon  (the  character  and  name 
of  which  were  to  the  grand  jury  unknown)  then  and 
there  held  in  the  hands  of  one  of  the  defendants  (but 
of  which  particular  one  was  to  the  grand  jurors  un- 
known) ''then  and  there  piratically,  wilfully,  and  feloni- 
ously, and  with  malice  aforethought,  strike  and  beat  the 
said  Maurice  Fitzgerald,  then  and  there  giving  to  the 
said  Maurice  Fitzgerald,  several  grievous,  dangerous, 
and  mortal  wounds,  and  did  then  and  there,  to  wit, 
at  the  time  and  place  last  above  mentioned,  him  the  said 
Maurice  Fitzgerald  cast  and  throw  from  and  out  of  the 
said  vessel  into  the  sea,  and  plunge,  sink,  and  drown  him 
the  said  Maurice  Fitzgerald  in  the  sea  aforesaid ;  of  which 
said  mortal  wounds,  casting,  throwing,  plunging,  sink- 
ing, and  drowning  the  said  Maurice  Fitzgerald  in  and 
upon  the  high  seas  aforesaid,  out  of  the  jurisdiction  of 
any  particular  State  of  the  United  States  of  America,  then 
and  there  instantly  died. 

"And  the  grand  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 

that  by   reason   of   the   casting  and   throwing  the   said   Maurice  iPitz- 

gerald  in  the  sea  as  aforesaid,  they  cannot  describe  the  said   mortal 

wounds  or  the  character  and  nature  of  said  weapon  or  instrument.    And 

so  the  grand  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  say  that 

the   said   Thomas    St.   Clair,   Herman    Sparf,   and    Hans   Hansen,   him 

the  said  Maurice  Fitzgerald  at  the  time  and  place  as  aforesaid,  upon 

the  high  seas  as  aforesaid,  out  of  the  jurisdiction  of  any  particular 

State  of  the  United  States  of  America,  in  and  upon  the  said  American 

vessel,  within  the  jurisdiction  of  the  United  States  of  America  and  of 

the   admiralty   and    maritime   jurisdiction    of   the   said    United    States 

of   America   and    of   this   court,    in    the    manner   and    form    aforesaid, 

piratically,    wilfully,    feloniously,    and    with    malice   aforethought,    did 
kill  and  murder,  against  the  peace  and  dignity  of  the  United  States 

of  America,  and  contrary  to  the  form  of  the  statute  of  the  said  United 

States  of  America,  in  such  case  made  and  provided." 

For  Falsely  Certifying  Checks  Under  Section  5208. 

(Approved  in  Potter  vs.  U.  S.,  155  U.  S.,  444;  39  Law  Ed., 

215.) 

The  count,  after  stating  time  and  venue,  and  that  the 
defendant  was  president  of  the  Maverick  National  Bank, 
and  authorized  to  lawfully  certify  checks,  charged. 

"That  said  Potter  as  such  president  as  aforesaid,  did  then  and 
there,  to  wit,  on  said  twenty-third  day  of  July,  at  Boston,  aforesaid, 


710  Fedeeal  Ceiminal  Law  Peoceduee. 

within  said  district,  and  within  the  jurisdiction  of  this  court,  unlaw- 
fully, knowingly,  and  wilfully  certify  a  certain  check  which  said 
check  was  then  and  there  drawn  upon  said  association  for  the  amount 
of  twenty-four  hundred  and  fifty  dollars  by  certain  persons,  to  wit, 
Irving  A.  Evans,  Austin  B.  Tobey,  and  William  S.  Bliss,  copartners, 
then  and  there  doing  business  under  the  firm  name  and  style  of 
Irving  A.  Evans  and  Company,  and  which  said  check  was  then  and 
there  of  the  tenor  following — that  is  to  say: 

'Boston,    July   23,    1891.  $2450.  No.    54493. 

Maverick  National  Bank. 

Pay  to  the  order  of       Hayward  &   Townsend,   $2450,  twenty- 
four  hundred  and  fifty  dollars. 

Irving  A.  Evans  &  Co. 

by  then  and  there  writing,  placing  and  putting  in  and  upon  and 
across  the  face  of  said  check  the  words  and  figures  following — that 
is  to  say: 

'Maverick  National  Bank. 

Certified  July  23,  1891. 

Pay  only  through  clearing  house. 

A.   P.   Potter,  P.' 
(meaning  said  Asa  P.  Potter,  such  president  as  aforesaid.) 

' ■ ,  Paying  Teller.' 


that  the  said  persons,  as  copartners  under  the  firm  name  and  style 
as  aforesaid,  by  whom  said  check  was  then  and  there  drawn  as  afore- 
said, did  not  then  and  there,  to  wit,  at  the  time  said  check  was  so 
certified  by  said  Potter  as  aforesaid,  have  on  deposit  with  said  associa- 
tion an  amount  of  money  then  and  there  equal  to  the  amount  then 
and  there  specified  in  said  check,  to  wit,  the  amount  of  twenty-four 
hundred  and  fifty  dollars  in  money,  as  he,  the  said  Potter,  then  and 
there  well  knew,  against  the  peace  and  dignity  of  the  United  States 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 

Under  Section  5209,  for  Embezzlement  by  Bank 

Officers. 

(Approved  in  United  States  vs.  Northway,  120  U.   S., 
327;  30  Law  Ed.,  page  665.) 


Form  of  Indictment  711 

The  count  charges  that  the  defendant,  with  proper  al- 
legations of  time  and  place,  "was  then  and  there  presi- 
dent and  agent  of  a  certain  national  banking  association; 
to  wit,  'The  Second  National  Bank  of  Jefferson,'  there- 
tofore duly  organized  and  established  and  then  existing 
and  doing  business  in  the  Village  of  Jefferson  and  County 
of  Ashtabula,  in  the  division  and  district  aforesaid,  under 
the  laws  of  the  United  States;  and  the  said  Stephen  A. 
North  way,  as  such  president  and  agent,  then  and  there 
had  and  received  in  and  into  his  possession  certain  o*' 
the  moneys  and  funds  of  said  banking  association  of 
the  amount  and  value  of  twelve  thousand  dollars,  to  wit, 
then  and  there  being  the  property  of  said  banking  as- 
sociation, and  then  and  there  being  in  the  possession  of 
said  Stephen  A.  Northway,  as  such  president  and  agent 
aforesaid,  he,  the  said  Stephen  A.  Northway,  then  and 
there  wrongfully  unlawfully,  and  with  intent  to  injure 
and  defraud  said  banking  association,  did  embezzel  and 
convert  to  his,  said  Stephen  A.  Northway 's  own  use,'; 
etc. 

Under  Section  32  for  Falsely  Pretending  to  be  an  United 

States  Officer. 

did  then  and  there  unlawfully,  fraudulently,  and 

falsely  assume  and  pretend  to  be  an  officer,  acting  under 
the  authority  of  the  United  States,  to  wit,  a  Deputy 
United  States  Marshal,  and  did  then  and  there  take  upon 
himself  to  act  as  such  Deputy  United  States  Marshal, 
and  did  then  and  there,    in  such    pretended    character, 

obtain  from five  dollars,  lawful  current  money  of 

the  United  States  of  America,  and  of  the  value  of  five 
dollars,  with  the  intention  of  him,  the  said to  de- 
fraud the  said ;  and  the  said  five  dollars  was  ob- 
tained from  the  said by  the  said pretending 

to  be  an  officer  of  the  United  States,  as  aforesaid,  and  act- 
ing under  the  authority  of  the  United  States,  with  the  in- 
tention of  him  the  said ,  so  pretending  to  be  an  of- 
ficer as  aforesaid,  to  defraud  the  said of  the  said 

five  dollars,  and  the  value  thereof;  all  of  which  was 
against  the  peace,  etc. 


712  Federal  Criminal  Law  Procedure. 

General  Form  for  Beginning  and  Ending  of  Indictment 
At  a  regular  term  of  the  United  States  District  Court 
for  the  Northern  District  of  Texas,  begun  and  h olden  at 
Dallas,  Texas,  on  the  second  Monday  of  January,  A. 
D.,  1911,  which  was  the  eleventh  day  of  said  month,  the 
grand  jurors  wherefor,  good  and  lawful  men,  duly  select- 
ed, empaneled,  sworn,  and  charged  to  inquire  into  and 
a  true  presentment  make  of  all  crimes  and  offenses  cog- 
nizable under  the  authority  of  the  laws  of  the  United 
States  of  America,  committed  within  the  Northern  Dis- 
trict of  Texas,  upon  their  oaths  present  into  open  Court 
that  heretofore,  to  wit,  etc., all  of  which  was  con- 
trary to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  United 
States  of  America. 

Foreman  of  the  Grand  Jury. 

District  Attorney. 

Under  Section    37  of  the    New    Code    for    Conspiracy 
Against  the  United  States. 

that  heretofore,  to  wit,  on  the day  of 

,  A.  D.  1910,  one  John  Doe  and  one  Richard 

Roe,  did  unlawfully,  fraudulently,  and  feloniously  con- 
spire together  to  commit  an  offense  against  the  United 
States  of  America,  to  wit,  to  transport  from  one  State 
to  another  State  in  the  United  States,  certain  obscene, 
lewd,  and  lascivious  matter;  and  he,  the  said  John  Doe, 
and  he,  the  said  Richard  Roe,  in  pursuance  to  said  con- 
spiracy, and  to  effect    the  object    thereof,  did,    on  the 

day  of ,  transport,  carry,  and  send 

from  Dallas,  in  the  State  of  Texas,  to  Little  Rock,  in 
the  State  of  Arkansas,  certain  obscene,  lewd,  and  lascivi- 
ous pamphlets  which  said  obscene,  lewd,  and  lascivi- 
ous pamphlets  were  too  lewd,  obscene,  and  lascivious  to 
be  here  set  out  and  made  a  part  of  the  records  of  this 
honorable  Court,  but  which  said  pamphlets  began  with 

the  words and  ended  with  the  words ; 

contrary  to  the  form  of,  etc. 


Form  of  Indictment  713 

Under  Section  211  of  the  New  Code,  Old  Section  3893, 
for  Mailing  Obscene  Matter.  . . 

that  heretofore,  to  wit,  on  the clay  of 

,  John  Doe  did  unlawfully,   knowingly,  and 

wilfully,  deposit  and  cause  to  be  deposited  in  the  United 
States  Post-office  at  Dallas,  Texas,  for  mailing  and  de- 
livery, certain  non-mailable  matter;  that  is  to  say,  he, 
the  said  John  Doe,  on  the  date  aforesaid,  and  within 
the  venue  aforesaid,  did  unlawfully,  knowingly,  and  wil- 
fully deposit  the  cause  to  be  deposited,  for  mailing  and 
delivery  in  the  post-office  of  the  United  States  at  Dallas, 
Texas,  a  certain  envelope,  which  said  envelope  was  duly 
stamped  with  a  two-cent  United  States  postage  stamp, 
and  which  said  envelope  was  addressed  "Mrs.  Richard 
Roe,  St.  Louis,  Missouri,"  and  which  said  envelope,  so 
stamped  and  so  addressed,  and  so  deposited  and  caused 
to  be  deposited,  then  and  there  contained  one  sheet  of 
paper,  upon  which  said  sheet  of  paper  there  was  writing, 
but  which  said  writing  is  too  obscene,  lewd,  and  lascivi- 
ous to  be  here  set  out  and  made  a  part  of  the  records  of 
this  honorable  Court,  but    which   said    writing    began 

,  and  ended ;  and  the  said  envelope  so 

deposited  and  caused  to  be  deposited,  and  so  containing 
the  said  sheet  of  paper,  with  the  writing  thereof  afore- 
said, was  by  him,  the  said  John  Doe,  so  deposited  and 
caused  to  be  deposited,  with  full  knowledge  upon  his 
part  of  the  writing  aforesaid  upon  the  said  sheet  of  paper, 
and  the  import  thereof;  all  of  which  was  contrary,  etc. 

Under  Section  192  of  the  New  Code,  Old  Section  5478, 
for  Breaking  Into  and  Entering  Post-office. 

did  unlawfully  forcibly,  and  feloniously,  break 

into  and  enter  a  certain  building  used  in  part  as  the  Post- 
office  of  the  United  States  at ,  with  the  intent  to 

commit  larceny  in  that  part  of  said  building  so  used  as 
said  United  States  Post-office  at ;  contrary,  etc. 


714  Federal  Criminal  Law  Procedure. 

Under  Section  215  of  the  New  Code,  old  Section  5480, 
for  Use  of  United  States  Mails  to  Promote 

Fraud. 

did  unlawfully,  knowingly,  and  fraudulently  de- 
vise a  scheme  and  artifice  to  defraud,  which  said  scheme 
and  artifice  to  defraud  was  to  be  effected  by  the  use  and 
misuse  of  the  United  States  Post-office  establishment; 
and  in  furtherance  of  said  scheme,  did  deposit  and  cause 
to  be  deposited  in  the  United  States  mails,  for  mailing 
and  delivery,  divers  letters  and  packets;  which  said 
scheme  and  artifice  to  defraud  was,  in  substance,  as  fol- 
lows, to  wit:    that  the  said would  pretend  to 

be  engaged  in  the  legitimate  business  of  a  wholesale  deal- 
er in  produce,  able  and  willing  to  pay  for  consignments 
of  produce,  and  being  financially  responsible,  and  that  he 
would  make  prompt  and  ready  remittance  for  such  con- 
signments of  produce  as  were  made  to  him;  that  such 
representations  would  be  made  to  produce  dealers 
throughout  the  United  States  of  America  who  were 
residents  of  towns  other  than    that  in  which    the  said 

would  purport  to  carry  on  the  said  business; 

that  when  the  said  produce  dealers  residing  in  towns 
other  than  that  in  which  the  said would  pur- 
port to  carry  on  said  business,  would  make  consignments 

in  answer  to  said  letters,  of  produce,  to  the  said , 

that  the  said would  sell  the  said  produce  and 

convert  the  proceeds  thereof  to  his  own  use  and  benefit, 
and  make  no  remittance  for  the  said  produce,  or  any 

part  thereof,  and  that  the  said did  not  intend 

to  make  remittance  for  the  said  produce,  or  any  part 
thereof,  or  to  pay  for  the  same  at  any  time,  but,  as  afore- 
said, he  would  convert  the  produce  and  the  proceeds  to 
his  own  use  and  benefit;  and  in  pursuance  of  such  scheme 
and  artifice,  and  to  effect  the  object    thereof,    he,  the 

said   ,  on  the   day  of   , 

within    the  jurisdiction    of  this  Court,    to  wit,    within 

,  etc.,  did  unlawfully,  knowingly,  fraudulently, 

and  feloniously  deposit  and  cause  to  be  deposited,  for 
mailing  and  delivery  in  the  United  States  Post-office  at 

,  a  certain  envelope,  duly  stamped  with  two- 

cent   United   States  postage   stamps,   and   addressed   to 


Form  of  Indictment  715 

,  and  which  said  envelope,  so  deposited,  and 

so  stamped  and  addressed,  contained  the  following  letter, 

to  wit: 

and  the  grand  jurors  aforesaid,  upon  their  oaths  afore- 
said, represent  and  show  to  the  Court  that  the  said 
did  not  intent  to  pay  the  prices  for  the  pro- 
duce in  said  letter  set  forth  and  promised;  that  he  was 
not  financially  responsible  as  represented  in  said  letter; 
that  he  was  not  a  reputable  and  legitimate  produce  deal- 
er, as  represented  in  said  letter,  but  intended,  as  afore- 
said, to  appropriate  the  proceeds  of  the  produce  shipped 
to  him  in  response  thereto  to  his  own  use  and  benefit, 
and  to  not  pay  for  the  same,  or  any  part  thereof;  con- 
trary to  the  form,  etc. 

Under  Section  206  of  the  New  Code,  False  Returns  to 
Increase  Compensation  of  Postmaster. 

one  John  Doe  was  postmaster   of  the  United 

States  Post-office  at ,  in  said  county  and  dis- 
trict, the  same  being  a  post-office  of  the  fourth  class; 

and  the  said   ,  so  being  such  postmaster,  as 

aforesaid,  on  the  date  aforesaid,  and  in  the  county  and 
district  aforesaid,  did  unlawfully,  knowingly,  and  fraudu- 
lently, for  the  purpose  of  fraudulently  increasing  his 
compensation  as  such  postmaster,  under  the  act  of  Con- 
gress, make  a  certain  false  return  to  the  Auditor  of  the 
Treasury  for  the  Post-office  Department  of  the  United 
States;  that  is  to  say,  a  certain  false  return  of  the  amount 
of  postage  stamps,  stamped  envelopes,  postal-cards,  and 
newspaper  and  periodical  stamps  canceled  as  postages 
on  matter  actually  mailed  at  the  said  post-office,  and  of 
postage  due  stamps  canceled  in  payment  of  under-charges 
and  unpaid  postages  upon  matter  delivered  at  the  said 

post-office  during  the  quarter  ending  the day 

of ,  by  which  said  return  the  said  amount  ap- 
peared and  was  alleged  to  be dollars  and 

cents,  which  said  return,  at  the  time  it  was  so  made, 

as  aforesaid,  was  false  in  this:  that  the  amount  of  postage 
stamps,  stamped  envelopes,  postal  cards,  and  newspaper 
and  periodical  stamps  canceled  as  postage  on  matter 
actually  mailed  at  the  said  post-office,  and  of  postage  due 


716  Federal  Criminal  Law  Procedure. 

stamps  canceled  in  payment  of  undercharges  and  un- 
paid postages  upon  matter  delivered  at  the  said  post-v 

office  during  the  quarter  aforesaid,  was  not   

dollars  and cents,  or  any  such  sum,  but  was 

a  different  and  much  smaller  sum,  to  wit,    

dollars,  as  he  the  said ,  at  the  time  of  making 

the  said  return,  as  aforesaid,  then  and  there  well  knew; 
all  of  which  was  contrary,  etc. 

Form    of  Indictment  Under    Section  125,  Old    Section 

5392,  for  Perjury. 

"The    United    States    of   America. 

"At  a  District  Court  of  the  United  States  of  America,  for  the  Dis- 
trict of  Massachusetts,  begun  and  •  holden  at  Boston,  within  and  for 
said  district,  on  the  first  Tuesday  of  December  in  the  year  of  our 
Lord    one   thousand   nine   hundred   and    nine. 

"First  Count.  The  jurors  for  the  United  States  of  America,  within 
and  for  the  District  of  Massachusetts,  upon  their  oath,  present  that 
Frank  H.  Mason,  of  Boston,  in  said  district,  at  the  several  times  of 
the  committing  of  the  several  offenses  in  this  indictment  hereafter 
charged,  was  clerk  of  the  District  Court  of  the  United  States  for  the 
District  of  Massachusetts,  and  as  such  clerk  was  by  law  required  to 
make  to  the  Attorney  General  of  the  United  States,  on  the  first  days 
of  January  and  July,  in  each  year,  and  in  the  form  prescribed  by 
said  Attorney  General,  a  written  return  for  the  half  year  ending  on 
said  days  respectively,  showing,  among  other  things,  all  the  fees 
and  emoluments  of  his  office,  of  fevery  name  and  character,  and  all 
the  necessary  expense  of  his  office,  and  to  verify  such  return  by  his 
oath;  that  said  Frank  H.  Mason,  on  the  twenty-fourth  day  of  Septem- 
ber, in  the  year  nineteen  hundred  and  eight,  at  Boston  aforesaid,  then 
so  being  such  clerk,  came  in  person  before  the  Honorable  Frederic 
Dodge,  then  and  before  that  time  judge  of  the  District  Court  of  the 
United  States  for  the  District  of  Massachusetts,  and  then  and  there 
made  and  described  a  certain  declaration  and  certificate  in  writing 
before  said  judge,  on  the  occasion  of  his  making  his  return  as  afore- 
said as  such  clerk  for  the  half  year  ending  on  the  thirtieth  day  of 
June,  in  the  year  1908,  and  was,  on  the  day  first  aforesaid,  there  in 
due  manner  sworn  by  said  judge  touching  the  truth  of  the  matters 
contained  in  said  return,  and  took  his  corporal  oath,  before  said  judge, 
that  said  written  declaration  and  certificate  by  him  the  said  Frank 
H.  Mason  subscribed  was  then  just  and  true  he  the  said  Frederic 
Dodge  as  such  judge  then  and  there  having  competent  authority,  and 
being  a  tribunal  and  officer  having  authority,  to  administer  said  oath 
and  take  said  written  declaration  and  certificate;  and  that  said 
Frank  H.  Mason  then  and  there  falsely,  corruptly,  and  wilfully,  and 
contrary  to  his  said  oath,  did  in  and  by  his  said  written  declaration 


Form  of  Indictment  717 

and  certificate  declare  and  certify  certain  material  matters,  among 
other  things,  in  substance  and  to  the  effect  that  said  return  was  in  all 
respects  just  and  true,  according  to  his  best  knowledge  and  belief, 
and  that  he  had  neither  received,  directly  or  indirectly,  any  other 
money  or  consideration  than  therein  stated,  that  the  total  amount 
of  fees  and  emoluments  received  in  bankruptcy  proceedings  was  six 
thousand  five  hundred  and  fifteen  dollars  and  eighty-five  cents;  that 
the  total  amount  of  fees  and  emoluments,  not  in  bankruptcy  proceed- 
ings, earned  from  parties  other  than  the  United  States,  was  six  hundred 
and  thirty-four  dollars  and  eighty-three  cents;  and  that  the  balance 
then  due  to  the  United  States  from  him  as  such  clerk  was  four  thou- 
sand and  nineteen  dollars  and  forty-six  cents;  whereas  in  truth  and  in 
fact  said  Prank  H.  Mason,  at  the  time  he  took  said  oath  and  made 
and  subscribed  said  written  declaration  and  certificate,  had,  as  he 
then  well  knew,  received  as  such  clerk,  during  said  half  year,  fees 
and  emoluments  in  bankruptcy  proceedings  a  much  greater  total 
sum,  to  wit,  the  sum  of  six  thousand  six  hundred  and  seventy-four 
dollars  and  eighty-five  cents,  and  had  earned  fees  and  emoluments, 
not  in  bankruptcy  proceedings,  from  parties  other  than  the  United 
States,  a  much  greater  total  sum,  to  wit,  the  sum  of  six  hundred  and 
eighty-one  dollars  and  eighty-three  cents,  and  the  balance  then  due 
to  the  United  States  from  him  as  such  clerk  was  a  much  greater 
sum,  to  wit,  four  thousand  two  hundred  and  twenty-five  dollars  and 
forty-six  cents;  and  whereas  in  truth  and  fact  said  Frank  H.  Mason 
did  not  then  believe  it  to  be  true  that  the  total  amount  of  such  fees 
and  emoluments  so  received  by  him  in  bankruptcy  proceedings  was 
six  thousand  five  hundred  and  fifteen  dollars  and  eighcy-five  cents, 
or  that  the  total  amount  of  fees  and  emoluments  so  earned  by  him, 
not  in  bankruptcy  proceedings  and  from  parties  other  than  the 
United  States,  was  six  hundred  and  thirty-four  dollars  and  eighty- 
three  cents,  or  that  such  balance  then  due  to  the  United  States  was 
four  thousand  and  nineteen  dollars  and  forty-six  cents;  and  so  said 
Frank  H.  Mason,  at  the  time  and  place,  and  in  the  manner  and  form 
aforesaid,  unlawfully  did  commit  wilful  and  corrupt  perjury." 

Under  Section  125  of  the  New  Code,  Old  Section  5392, 

for  Perjury. 

that  heretofore,  to  wit,  on  the day  of 

,  in  the  year ,  there  came  on  to  be 

tried,  in  the  District  aforesaid,  and  in  the  United  States 

District  Court,  before  the  Honorable   ,  judge 

thereof,  and  a  jury  duly  empaneled  and  sworn  for  that 
purpose,  a  certain  issue  duly  joined  between  the  said 

United  States  of  America  and  one   ,  upon  a 

criminal  indictment  duly  returned  and  then  pending  in 
said  Court  against  the  said for  having  unlaw- 


718  Federal  Criminal  Law  Procedure. 

fully  engaged  in  the  business  of  a  retail  liquor  dealer 
without  first  having  paid  the  special  tax  thereof,  as  re- 
quired by  the  United  States  statutes;  and  at  and  upon 
a  trial  of  the  said  issue  in  the  said  Court,  before  the  said 

judge  and  jury,  to  wit,  on  the day  of 

in  the  same  said  year  of ,  and  within  the  city  and 

district  aforesaid,  and  State  aforesaid,  one  John  Jones 
appeared  and  was  produced  as  a  witness  for  and  on  be- 
half of  the  said  defendant,  the  said ,  in  the  said 

indictment,  and  was  then  and  there  duly  sworn,  and  took 
his  oath  as  such  witness  before  the  said  Court,  that  the 
evidence  which  he,  the  said  John  Jones,  should  give  on 
the  said  trial  should  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth,  the  said  Court  then  and  there 
having  had  competent  authority  to  administer  the  said 
oath  to  the  said  John  Jones  on  that  behalf;  and  the  said 
John  Jones,  so  being  sworn,  as  aforesaid,  in  the  cause 
aforesaid,  in  and  by  the  Court  aforesaid,  it  then  and 
there,  upon  the  said  trial  of  the  said  issue,  became  and 

was  a  material  inquiry  whether and  whether 

;  and  the  grand  jurors  upon  their  oaths  afore- 
said, that  the  said  John  Jones,  so  being  sworn  and  so 

having  taken  his  oath  as  aforesaid,  on  the  said 

day  of ,  in  the  said  year  of  ,  and 

within  the  said  county,  division,  district,  and  state  afore- 
said, upon  the  said  trial  of  the  said  issue,  as  aforesaid 
wilfully  and  corruptly,  and  contrary  to  his  said  oath 
did  swear  and  depose  before  the  said  Court  and  jury 
amongst  other  things,  in  substance  and  to  the  effect  fol 

lowing;  that  is  to  say,  that and  that 

whereas,  in  fact  it  was  not,  and  is  not,  true,  that 

and  that ;  and  at  the  time  of  so  swearing  and 

deposing,  the  said  John  Jones  did  not  believe  it  to  be 

true  that and  that ;  and  the  grand 

jurors  aforesaid,  upon  their  oaths  aforesaid,  do  say 
that  the  said  John  Jones,  in  the  manner  and  form  afore- 
said, having  taken  an  oath  before  a  competent  tribunal 
aforesaid,  in  a  case  wherein  a  law  of  the  said  United 
States  authorized  an  oath  to  be  administered  that  he 
would  truly  depose  and  testify,  wilfully,  and  contrary  to 
bis    said    oath,    did    depose  and  state  material  matters 


Form  of  Indictment  719 

which  he  did  not  then  believe  to  be  true,  and  thereby  did 
commit  wilful  and  corrupt  perjury;  contrary,  etc. 

For  Making  and  Forging  and  Counterfeiting  National 
Bank  Notes,  New  Section  149,  Old  Section  5414. 

one with  intent  to  defraud  certain 

persons  to  the  grand  jurors  unknown,  did  unlawfully, 
feloniously,  and  fraudulently  falsely  make,  forge,  and 
counterfeit  ten  notes,  in  imitation  of,  and  purporting  to 
be,  circulating  notes  of  the  national  bank  currency  of 
the  United  States,  to  wit,  the  circulating  notes  of  the 
banking  association,  each  of  which  said  false- 
ly made,  forged,  and  counterfeited  notes  was  in  this  ten- 
or, as  follows,  to  wit:  (Here  set  out  fully,  or  as  nearly 
completely  as  possible) ;  and  the  said  counterfeited, 
falsely  made,  and  forged  circulating  notes,  as  aforesaid, 
were  so  falsely  made,  forged  and  counterfeited  for  the 
purpose  of  defrauding  certain  persons,  to  the  grand 
jurors  unknown;  contrary,  etc. 

For  Passing  or  Attempting  to  Pass  Counterfeit  Notes  of 
National  Banking  Associations. 

did   unlawfully,    knowingly,    fraudulently, 

and  feloniously  pass,  utter,  and  publish,  and  attempt  to 
pass,  utter,  and  publish  as  true  and  genuine,  a  certain 
falsely  made,  forged,  and  counterfeited  note,  purporting 

to   be   issued   by   the  bank   of a 

banking  association  which  had  theretofore  been  author- 
ized, and  was  acting  under  the  laws  of  the  United  States 
of  America,  upon  and  to  John  Jones,  with  the  intent  and 

purpose  of  him,  the  said   of  defrauding1  the 

said  John  Jones,  the  tenor  of  which  said  false,  forged, 
and  counterfeit  note  is  as  follows,  to- wit;  that  is  to  say, 

(here  set  out  the  note)  he,  the  said   ,  at  the 

time  of  so  passing,  uttering,  and  publishing,  and  at- 
tempting to  pass,  utter,  and  publish  the  aforementioned 
falsely  made,  forged,  and  counterfeited  note,  upon  and 
to  the  said  John  Jones,  then  and  there  well  knew  that 
the  same  said  falsely  made,  forged,  and  counterfeited 
note  was  falsely  made,  forged,  and  counterfeited,   and 


720  Federal  Criminal  Law  Procedure. 

then  and  thereby  intended  to  defraud  the  said  John 
Jones;  contrary,  etc. 

Under  Section  163  of  the  New  Code,  Old  Section  5457, 
for  Counterfeiting  Coins. 

did  then  and  there  knowingly,  wrongfully,  un- 
lawfully, fraudulently,  and  feloniously  falsely  make, 
forge,  and  counterfeit,  and  cause  and  procure  to  be  falsely 
made,  forged,  and  counterfeited,  and  willingly  aided  and 
assisted  in  falsely  making,  forging  and  counterfeiting, 
five  hundred  certain  false,  forged,  and  counterfeit  coins, 
each  of  which  said  false,  forged,  and  counterfeit  coins 
was  then  and  there  in  the  resemblance  and  similitude  of 
the  silver  coins  which  had  theretofore  been  coined  at 
the  mints  of  the  United  States,  and  called  silver  dollars, 
and  he,  the  said  John  Doe,  then  and  here  knowing  the 
said  false,  forged,  and  counterfeit  coins  to  be  then  and 
there  false,  forged,  and  counterfeited,  with  the  intent  of 
him,  the  said  John  Doe,  then  and  there  to  defraud  cer- 
tain persons  to  the  grand  jurors  unknown;  contrary,  etc. 

For  Passing,  Etc.,  Counterfeit  Coins,  Section  163  of  the 
New  Code,  Old  Section  5457. 

And   the   grand   jurors   aforesaid,   upon   their 

oaths  aforesaid,  do  further  present  into  open  Court,  that 

heretofore,  to  wit,  on  the day  of , 

A.  D ,  one  John  Doe,  within  the  

Division   of   the District    of ,  did 

then  .and  there  knowingly,  wrongfully,  feloniously,  and 
fraudulently,  have  in  his  possession  five  hundred 
certain  false,  forged,  and  counterfeited  coins,  each 
of  which  said,  false,  forged,  and  counterfeited  coins 
was  then  and  there  in  the  resemblance  and  sim- 
ilitude of  the  silver  coins  which  had  theretofore 
been  coined  at  the  mints  of  the  United  States  and  called 
silver  dollars,  he,  the  said  John  Doe,  then  and  there 
knowing  the  said  false,  forged,  and  counterfeited  coins 
to  be  then  and  there  false,  forged,  and  counterfeited,  did 
then  and  there  knowingly,  wrongfully,  unlawfully,  and 
fraudulently  pass,   utter,   and   publish   one   of  the   said 


Form  of  Indictment  721 

false,  forged,  and  counterfeited  coins  upon  and  to  one 
John  Jones,  with  the  intent  of  him,  the  said  John  Doe, 
to  defraud  the  said  John  Jones,  he,  the  said  .John  Doe, 
then  and  there  knowing  the  said  coin  so  passed  upon 
the  said  John  Jones  to  be  false,  forged,  and  counterfeited, 
as  aforesaid;  contrary,  etc. 

For  Receipting  for  Larger   Sums  Than  Are  Paid,   New 
Section  86,  Old  Section  5483. 

(Approved  in  U.  S.  vs.  Mayers,  81  Federal,  159.) 

"The  jurors  of  the  United  States  of  America  within  and  for  the 
district  and  circuit  aforesaid,  on  their  oaths  present  that  G.  F.  Mayers, 
late   or   Frederick   County,    in   the   district  aforesaid,   at    said    county, 

heretofore,  to  wit,  on  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  ninety-two,  at  the  said  Western  Dis- 
trict of  Virginia,  and  within  the  jurisdiction  of  this  court,  the  said 
G.  F.  Myers  being  then  and  there  an  officer  of  the  United  States,  to 
wit,  postmaster  at  Stevens  City,  Virginia,  charged  with  the  payment 
of  an  appropriation  made  by  an  Act  of  Congress,  to  wit,  an  appropria- 
tion for  the  payment  of  letter  carriers  at  experimental  free  delivery 
offices,  did  unlawfully  pay  to  an  employee  of  the  United  States,  to 
wit,  one  Douglas  K.  Drake,  and,  to  wit,  one  Edgar  C.  Cadwallader, 
who  were  then  and  there  employees  of  the  United  States,  to  wit, 
letter  carriers,  a  sum  less  than  that  provided  by  law,  to  wit,  the  sum 
of  $122.92,  and  required  said  employees  to  give  vouchers  for  an  amount 
greater  than  that  actually  paid  to  and  received  by  them,  to  wit.  the 
sum  of  $306.17,  against  the  peace  of  the  said  United  States  and  their 
dignity,  and  against  the  form  of  the  statute  of  the  said  United  States 
in  such  case  made  and  provided." 

Form  Approved  in  U.  S.  vs.  Reynolds  et  al.,  235  U.  S., 

133,  for  Violation  Peonage  Act,  Sections  U. 

R.  S.,  1990-5526,  and  269  Criminal 

Code. 

United  States  of  America: 

District  Court  of  the  United    States   for   the    Southern 
Division  of  the  Southern  District  of  Alabama,  of  the 

May  Term,  1911. 
Southern  District  of  Alabama,  Southern  Division. 

The  grand  jurors  of  the  United  States,  chosen,  select- 
ed, and  sworn  in  and  for  the  Southern  Division  of  the 
Southern  District  of  Alabama,  upon  their  oath  do  find 

46 


722  Federal  Criminal  Law  Procedure. 

and  present  that  on,  to  wit,  the  eighth  day  of  May,  in 
the  year  of  our  Lord  one  thousand  nine  hundred  and 
eleven,  within  the  Southern  Division  of  the  Southern  Dis- 
trict of  Alabama,  and  within  the  jurisdiction  of  this 
Court,  and  before  the  finding  of  this  indictment,  J.  A. 
Eeynolds,  whose  name,  other  than  as  herein  stated,  is 
unknown  to  this  grand  jury,  late  of  the  division  and  dis- 
trict aforesaid,  did  then  and  there  hold  Ed.  Rivers  in 
a  condition  of  peonage;  that  is  to  say,  did  hold  the  said 
Ed.  Rivers  in  involuntary  servitude,  to  work  out  a  debt 
which  the  said  J.  A.  Reynolds  then  and  there  claimed 
that  the  said  Ed.  Rivers  then  and  there  owed  the  said 
J.  A.  Reynolds,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided  and  against  the  peace  and 
dignity  of  the  United  States  of  America. 

Second  Count. 

And  the  grand  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  find  and  present  that  on,  to  wit,  the 
eighth  day  of  May,  in  the  year  of  our  Lord  one  thousand 
nine  hundred  and  eleven,  within  the  Southern  Division 
of  the  Southern  District  of  Alabama,  and  within  the 
jurisdiction  of  this  Court,  and  before  the  finding  of  this 
indictment,  J.  A.  Reynolds,  whose  name,  other  than  as 
herein  stated,  is  unknown  to  the  grand  jury,  late  of  the 
division  and  district  aforesaid,  did  then  and  there  hold 
Ed.  Rivers  in  a  condition  of  peonage;  that  is  to  say,  did 
hold  the  said  Ed.  Rivers  in  involuntary  servitude,  to  work 
out  a  debt  which  the  said  J.  A.  Reynolds  then  and  there 
claimed  that  the  said  Ed.  Rivers  then  and  there  owed 
the  said  J.  A.  Reynolds;  that  is  to  say,  that  the  said  Ed. 
Rivers  was,  to  wit,  during  the  May  Term,  1910,  of  the 
county  Court  of  Monroe  County,  in  the  State  of  Alabama, 
convicted  in  said  Court  of  the  offense  of  petit  larceny 
and  was  fined  the  sum  of,  to  wit,  fifteen  dollars,  and 
judgment  was  rendered  against  him  by  said  Court  for 
the  amount  of  said  fine  and  also  for  the  further  and  ad- 
ditional sum  of  forty-three  dollars  and  seventy-five  cents 
cost;  and  thereupon  the  said  J.  A.  Reynolds  confessed 
judgment  with  the  said  Ed.  Rivers  in  said  Court  for  said 
fine  and  cost,  and  the  said  J.  A.  Reynolds  did,  after  the 


Form  of  Indictment  723 

conviction  of  the  said  Ed.  Rivers  as  aforesaid,  and  be- 
fore the  finding  of  this  indictment,  at  the  request  of  the 
said  Ed.  Rivers,  pay  the  said  sum  of  to  wit,  fifty-eight  dol- 
lars and  seventy-five  cents  in  settlement  of  said  fine  and 
cost,  and  by  reason  of  said  payment  the  said  Ed.  Rivers 
became  and  was  indebted  to  the  said  J.  A.  Reynolds  in 
said  sum  of  fifty-eight  dollars  and  seventy-five  cents;  and 
thereupon  the  said  Ed.  Rivers  did  enter  into  a  contract 
in  writing  with  the  said  J.  A.  Reynolds  whereby  the  said 
Ed.  Rivers  agreed  to  work  and  labor  for  him  the  said 
J.  A.  Reynolds,  on  the  plantation  of  the  said  J.  A.  Rey- 
nolds, in  Monroe  County,  and  under  his  direction  as  a 
farm  hand,  to  pay  said  sum  of  fifty-eight  dollars  and 
seventy-five  cents,  for  the  term  of  nine  months  and  twen- 
ty-four days,  at  the  rate  of  six  dollars  per  month,  to- 
gether with  board,  lodging,  and  clothing  during  the  said 
term  of  hire,  said  term  of  hire  commencing  on  the  fourth 
day  of  May,  in  the  year  of  our  Lord  nineteen  hundred 
and  ten,  and  ending  on  the  twenty-eighth  day  of  Febru- 
ary, in  the  year  of  our  Lord  nineteen  hundred  and  eleven; 
which  said  contract  was  substantiallv  in  words  and  fig- 
ures  as  follows: 

"Labor  Contract. 
"The  State  of  Alabama,  Monroe  Countys 

"Whereas,  at  the  May  Term,  1910,  of  the  county  Court, 
held  in  and  for  said  county,  I,  Ed.  Rivers  was  convicted 
in  said  Court  of  the  offense  of  petit  larceny  and  fined 
the  sum  of  fifteen  dollars,  and  judgment  has  been  ren- 
dered against  me  for  the  amount  of  said  fine,  and  also 
in  the  further  and  additional  sum  of  forty  three  &  75-100 
dollars,  cost  in  said  case,  and  whereas  J.  A.  Reynolds, 
together  with  A.  C.  Hixon,  have  confessed  judgment 
with  me  in  said  Court  for  said  fine  and  cost.  Now,  in 
consideration  of  the  premises,  I,  the  said  Ed.  Rivers, 
agree  to  work  and  labor  for  him,  the  said  J.  A.  Rey- 
nolds, on  his  plantation  in  Monroe  County,  Alabama, 
and  under  his  direction  as  a  farm  hand  to  pay  fine  and 
cost  for  the  term  9  months  and  24  days,  at  the  rate  of 
$6.00  dollars  per  month,  together  with  my  board,  lodg- 


724  Federal  Criminal  Law  Procedure. 

ing,  and  clothing  during  the  said  time  of  hire,  said  time 
of  hire  commencing  on  the  4  day  of  May,  1910,  and  end- 
ing on  the  28  day  of  February,  1911,  provided  said  work 
is  not  dangerous  in  its  character. 

"Witness  our  hands  this  4  day  of  May,  1910. 

"Ed.  (his  x  mark)  Rivers. 

"J.  A.  Reynolds. 
"Witness: 

"John  M.  Coxwell." 

That  said  contract  was  signed  in  open  Court  and  was 
approved  by  I.  B.  Slaughter,  as  judge  of  said  county 
court  of  Monroe  County  on  the  fourth  day  of  May,  1910; 
that  after  the  said  contract  was  signed  by  said  Ed. 
Rivers  the  said  Ed.  Rivers  did  work  and  labor  for  him, 
the  said  J.  A.  Reynolds,  and  during  the  time  the  said 
Ed.  Rivers  was  so  working  for  said  J.  A.  Reynolds  as 
aforesaid,  the  said  J.  A.  Reynolds  did  threaten  the  said 
Ed.  Rivers  that  of  he,  the  said  Ed.  Rivers,  refused  to  per- 
form work  and  labor  for  said  J.  A.  Reynolds  and  to  work 
out  the  said  debt,  he,  the  said  J.  A.  Reynolds,  would  have 
the  said  Ed.  Rivers  arrested  and  put  in  jail;  and  that  the 
said  Ed.  Rivers  did  not,  after  said  threats  were  so  made, 
voluntarily  perform  work  and  labor  for  said  J.  A.  Rey- 
nolds, but,  coerced  and  intimidated  by  the  said  threats 
of  the  said  J.  A.  Reynolds,  as  aforesaid,  said  Ed.  Rivers 
did  against  his  free  will  continue  to  perform  work  and 
labor  for  said  J.  A.  Reynolds  under  the  said  contract 
until  a  later  date,  to  wit,  on  or  about  the  sixth  day  of 
June,  in  the  year  of  our  Lord  nineteen  hundred  and  ten; 
and  the  grand  jurors  aforesaid  do  charge  and  present 
that  the  said  J.  A.  Reynolds  did,  in  the  manner  afore- 
said, hold  the  said  Ed.  Rivers  in  a  condition  of  peonage, 
contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided  and  against  the  peace  and  dignity  of  the 
United  States  of  America. 

Third  Count. 

And  the  grand  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  find  and  present  that  on,   to  wit,  ^he 


Foem  of  Indictment  725 

eighth  day  of  May,  in  the  year  of  our  Lord  one  thousand 
nine  hundred  and  eleven,  within  the  Southern  Division 
of  the  Southern  District  of  Alabama,  and  within  the 
jurisdiction  of  this  Court,  and  before  the  rinding  of  this 
indictment,  J.  A.  Reynolds,  whose  name  other  than  as 
herein  stated  is  unknown  to  this  grand  jury,  did  then 
and  there  arrest  and  cause  to  be  arrested  one  Ed.  Rivers, 
whose  name  other  than  as  herein  stated  is  unknown  to 
this  grand  jury,  for  the  purpose  of  compelling  the  said 
Ed  Rivers,  to,  by  involuntary  servitude,  pay  a  debt  which 
the  said  J.  A.  Reynolds  claimed  that  the  said  Ed  Rivers 
owed  him,  the  said  J.  A.  Reynolds;  that  is  to  say,  the 
said  J.  A.  Reynolds  did,  after  the  happening  of  the  mat- 
ters and  things  set  forth  in  the  second  count  of  this  in- 
dictment, which  is  here  referred  to,  appear  before  one 
I.  B.  Slaughter,  who  was  then  and  there  the  judge  of  the 
county  Court  of  Monroe  County,  within  said  division 
and  district,  on,  to  wit,  the  sixth  day  of  June,  nineteen 
hundred  and  ten,  and  did  make  and  swear  to  an  affidavit 
substantially  in  words  and  figures  as  follows,  to-wit: 

"Affidavit  and  Complaint. — Violating  Criminal  Con- 
tract. 

"The  State  of  Alabama,  Monroe  County,  County  Court: 

"Before  me,  I.  B.  Slaughter,  judge  of  the  county  Court 
of  said  county,  personally  appeared  J.  A.  Reynolds  who, 
being  duly  sworn,  says  that  he  has  probable  cause  for 
believing  and  does  believe  that  Ed  Rivers  on  whom  a 
fine  of  fifteen  dollars  was  imposed  in  the  county  Court 
of  Monroe  County,  Alabama,  at  the  May  Term,  1910,  of 
said  Court,  for  the  offense  of  petit  larceny,  who  in  open 
Court  signed  a  written  contract  approved  by  the  judge 
of  said  Court,  whereby  in  consideration  of  J.  A.  Rey- 
nolds and  A.  C.  Hixon  becoming  his  sureties  on  a  con- 
fession of  judgment  for  the  fine  and  cost,  agreed  to  per- 
form farm  labor  for  the  said  J.  A.  Reynolds  at  the  rate 
of  six  dollars  per  month  for  9  months  and  24  days,  and 
who  after  being  released  on  such  confession  of  judgment, 
failed  or  refused,  without  a  good  and  sufficient  excuse, 
to  perform  said  labor  for  said  J.  A.  Reynolds,  which  in 


726  Federal  Criminal  Law  Procedure. 

said  contract  he  promised  and  agreed  to  perform  in  said 
county  within  the  past  twelve  said  months,  against  the 
peace  and  dignity  of  the  State  of  Alabama. 

"J.  A.  Reynolds. 

"  Sworn  to  before  me  6  dav  of  Jnne,  1910. 

"LB.  Slaughter, 
'Judge  of  the  County  Court." 


<  i 


And  thereupon  a  warrant  was  issued  by  the  said  I. 
B.  Slaughter,  judge  as  aforesaid,  for  the  arrest  of  the 
said  Ed.  Rivers,  which  warrant  was  duly  executed;  and 
thereupon  at  the  June  nineteen  hundred  and  ten  term 
of  said  county  Court  the  said  Ed  Rivers  was  convicted 
of  the  offense  of  violating  a  criminal  contract  and  was 
by  the  said  Court  fined  the  sum  of  1  cent  and  judgment 
was  by  the  said  Court  rendered  against  him,  the  said 
Ed  Rivers,  for  the  amount  of  said  fine  and  also  for  the 
further  and  additional  sum  of  eighty-seven  dollars  and 
5  cents  cost,  and  thereupon  one  G.  W.  Broughton,  alias 
Gideon  W.  Broughton,  whose  name  other  than  as  herein 
stated  is  unknown  to  the  grand  jury,  confessed  judg- 
ment with  the  said  Ed  Rivers  for  the  amount  of  said 
judgment;  and  thereupon  the  said  G.  W.  Broughton,  at 
the  request  of  the  said  Ed  Rivers,  paid  the  amount  of 
said  judgment,  out  of  which  amount  so  paid  by  the  said 
G.  W.  Broughton,  alias  Gideon  W.  Broughton,  the  said 
J.  A.  Reynolds  was  paid  the  amount  which  he  claimed 
the  said  Ed  Rivers  then  owed  him;  and  the  said  Ed 
Rivers  did  then  and  there  agree  to  work  and  labor  for 
said  G.  W.  Broughton,  alias  Gideon  W.  Broughton,  on 
his  plantation  in  Monroe  County  and  under  his  direction 
as  a  farm  hand,  to  pay  said  sum,  for  the  term  of  fourteen 
months  and  fifteen  days  at  the  rate  of  six  dollars  per 
month,  together  with  board,  lodging,  and  clothing  dur- 
ing the  time  of  said  hire,  said  time  of  hire  commencing 
on  the  seventh  day  of  June,  nineteen  hundred  and  ten, 
and  ending  on  the  twenty-second  day  of  August,  nineteen 
hundred  and  eleven;  and  the  grand  jurors  aforesaid,  up- 
on their  oath  aforesaid,  do  further  charge  and  present 
that  the  object  and  purpose  of  the  said  J.  A.  Reynolds 


Form  of  Indictment  727 

in  making  said  affidavit  and  causing  the  arrest  of  the 
said  Ed  Rivers  was,  by  means  of  said  proceedings,  to 
cause  and  compel  the  said  Ed  Rivers  to,  by  involuntary 
servitude,  work  out  the  debt  which  the  said  J.  A.  Rey- 
nolds then  and  there  claimed  that  the  said  Ed  Rivers 
owed  him,  the  said  J.  A.  Reynolds;  and  that  the  said 
agreement,  entered  into  by  the  said  Ed.  Rivers  to  work 
for  said  G.  W.  Broughton,  alias  Gideon  W.  Broughton, 
was  not  a  voluntary  agreement,  but  that  the  said  Ed 
Rivers  made  said  agreement  under  the  constraint  of  the 
said  proceedings  in  the  said  county  Court;  wherefore  the 
grand  jurors  aforesaid,  upon  their  oath  aforesaid,  do  find 
and  present  that  the  said  J.  A.  Reynolds  did,  in  the  man- 
ner aforesaid,  arrest  the  said  Ed.  Rivers  and  did  cause 
the  said  Ed  Rivers  to  be  arrested,  and  did  aid  in  the 
arrest  of  the  said  Ed  Rivers,  to  be  held  in  a  condition  of 
involuntary  servitude,  to  work  out  a  debt  which  the  said 
J.  A.  Reynolds  then  and  there  claimed  that  the  said  Ed 
Rivers  owed  him,  the  said  J.  A.  Reynolds,  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  United  States 
of  America. 

Form  of  Indictment  Approved  in  U.  S.  vs.  Lewis,  235, 
U.  S.,  page  282,  Under  Meat  Inspection  Law 
of  1906,  Against  Alteration  or  Destruc- 
tion of  Tags  and  Labels,  Etc. 

United  States  of  America, 

District  of  Kansas,  First  Division,  ss: 

In  the  District  Court  of  the  United  States  in  and  for 
the  district  aforesaid,  at  the  October  Term  thereof,  A. 
D.  1913. 

The  grand  jurors  of  the  United  States,  impaneled, 
sworn,  and  charged  at  the  term  aforesaid,  of  the  Court 
aforesaid,  on  their  oath  present  that  Charles  Lewis, 
Lewis  Howard,  Fred  Withers,  and  James  McBee  on  or 
about  the  23rd  day  of  January,  in  the  year  1913  in  the 
said  division  of  said  district,  and  within  the  jurisdiction 
of  said  Court,  in  the  county  of  Wyandotte  and  State  of 


728  Federal  Criminal  Law  Procedure. 

Kansas,  did  then  and  there,  without  lawful  authority, 
knowingly,  wrongfully,  unlawfully,  wilfully,  and  felon- 
iously alter,  deface,  break,  and  destroy  a  certain  mark, 
tag,  or  label,  in  words  and  figures  follows,  to-wit :  ' '  Gov- 
ernment Seal  No.  4451074,"  then  and  there  being  upon 
a  certain  railroad  freight  car  designated  as  Car  S.  R.  L. 
No.  4422,  containing  meat  and  meat  products  then  and 
there  under  Government  supervision  for  inspection  and 
offered  for  transportation  from  the  State  of  Kansas  to 
the  State  of  New  Jersey;  said  mark,  tag,  or  label  having 
theretofore  been  affixed  to  and  upon  said  car  containing 
said  meat  and  meat  products  in  accordance  with  the 
rules  and  regulations  issued  by  the  Secretary  of  Agri- 
culture under  authority  of  the  act  of  Congress  approved 
June  30,  1906,  entitled:  "An  act  making  appropriations 
for  the  Department  of  Agriculture  for  the  fiscal  year 
ending  June  30,  1907,"  which  said  rules  and  regulations 
were  then  and  there  in  full  force  and  effect. 

And  the  grand  jurors  aforesaid,  on  their  oath  afore- 
said, do  further  present  that  the  said  Charles  Lewis, 
Lewis  Howard,  Fred  Withers,  and  James  McBee  on  or 
about  the  23rd  day  of  January,  in  the  year  1913,  in  the 
said  division  of  said  district,  and  within  the  jurisdiction 
of  said  Court,  in  the  county  of  Wyandotte  and  State  of 
Kansas,  did  then  and  there,  without  lawful  authority, 
knowingly,  wrongfully,  unlawfully,  wilfully,  and  feloni- 
ously alter,  deface,  break,  and  destroy  a  certain  seal, 
label  or  identification  device  in  words  and  figures  as  fol- 
lows to  wit: 

I.  D.  Form  109  E. 

U.  S.  Department  of  Agriculture, 

Bureau  of  Animal  Industry. 


WARNING. 

Meat  product — Do  not  break  this  seal 
under  penalty  of  the  law. 


Form  of  Indictment  729 

PENALTY. 

Fine  not  exceeding  $10,000  or  imprison- 
ment for  a  period  of  not  more  than  two 
years,  or  both. 

James  Wilson, 

Secretary. 

then  and  there  affixed  to  and  being  upon  a  certain  freight 
car  designated  as  Car  S.  E.  L.  No.  4422,  containing  meat 
and  meat  products  then  and  there  under  Government 
supervision  for  inspection  and  offered  for  transportation 
from  the  State  of  Kansas  to  the  State  of  New  Jersey;  said 
seal,  label,  or  identification  device  having  theretofore 
been  affixed  to  and  upon  said  car  containing  said  meat 
and  meat  products  in  accordance  with  the  rules  and  reg- 
ulations issued  by  the  Secretary  of  Agriculture  under 
authority  of  the  act  of  Congress  approved  June  30,  1906, 
entitled  "an  act  making  appropriations  for  the  Depart- 
ment of  Agriculture  for  the  fiscal  year  ending  June  30, 
1907,"  which  said  rules  and  regulations  were  then  and 
there  in  full  force  and  effect,  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  United  States. 

Form   of   Indictment   for   Harboring    Prostitutes,    Ap- 
proved in  U.  S.  vs.  Portale  et  al,  235  U.  S.,  page 
27,  Under  White  Slave  Act  of  June  25, 
1910;  Not  Confined  to  Those 
Who  Were  Concerned  in 
Bringing  into   this 
Country. 

The  grand  jurors  of  the  United  States  of  America, 
within  and  for  the  district  of  Colorado,  good  and  lawful 
men,  duly  selected,  empaneled,  sworn,  and  charged,  on 
their  oaths  present : 

That  one  Louise  Richar,  alias  Louise  Alexander,  an 
alien  woman,  did,  on,  to  wit,  the  first  day  of  January, 
nineteen  hundred  and  thirteen,  enter  the  United  States 
from  Great  Britain,  Great  Britain  being  then  and  there 
and  at  all  times  mentioned  in  this  indictment  a  party  to 


730  Federal  Criminal  Law  Procedure. 

an  agreement  and  arrangement  for  the  suppression  of 
the  white  slave  traffic,  adopted  July  twenty-fifth,  nine- 
teen hundred  and  two,  as  shown  by  the  proclamation  of 
the  President  of  the  United  States,  dated  June  fifteenth, 
nineteen  hundred  and  eight;  and  that  one  Elie  Portale 
and  one  Juliette  Portale,  alias  Juliette  Puppet,  alias 
Madame  Juliette,  did  knowingly,  within  three  years 
after  the  entry  of  said  alien  woman  into  the  United 
States,  keep,  maintain,  control,  and  harbor  her,  said 
alien  woman,  at  a  certain  house  and  place,  to  wit,  at  the 
premises  known  as  nineteen  thirty-five  Larimer  Street, 
in  the  city  and  county  of  Denver,  State  of  Colorado,  for 
the  purpose  of  prostitution,  for  the  period,  to  wit,  from 
the  twenty-eight  day  of  July,  nineteen  hundred  and  thir- 
teen, to  the  eighth  day  of  September,  nineteen  hundred 
and  thirteen. 

That  said  Elie  Portale  and  Juliette  Portale,  alias  as 
aforesaid,  and  each  of  them,  so  knowingly  keeping,  main- 
taining, controlling,  and  harboring  said  Louise  Richar, 
as  aforesaid,  at  said  city  and  county  of  Denver,  State 
and  district  of  Colorado,  and  within  the  jurisdiction  of 
this  Court,  at  said  house  and  place,  for  the  purpose  of 
prostitution,  as  aforesaid,  did  willfully,  unlawfully,  and 
feloniously  fail  to  file,  within  thirty  days  after  said 
twenty-eight  day  of  July,  nineteen  hundred  and  thir- 
teen, the  date  of  the  commencement  of  said  keeping, 
maintaining,  controlling,  and  harboring  of  said  alien 
woman,  as  aforesaid,  with  the  Commissioner  General  of 
Immigration  of  the  United  States,  as  required  by  law  so 
to  do,  a  statement  in  writing,  setting  forth  the  name  of 
said  alien  woman,  the  place  at  which  she  was  then  and 
there  kept,  and  the  facts  as  to  the  date  of  her  entry  into 
the  United  States,  the  port  through  which  she  entered, 
her  age,  nationality,  and  parentage,  and  concerning  her 
procuration  to  come  to  this  country  within  the  knowl- 
edge of  said  Elie  Portale  and  said  Juliette  Portale,  alias 
as  aforesaid;  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  and  dig- 
nity of  the  United  States  of  America. 


Form  of  Indictment  731 

Form  of  indictment  for  Violation  of  Quarantine  Act  of 

March  3,  1905,  33  Stat.  1264,  as  Amended  March 

4,   1913,   Applying  to   Receivers   Etc., 

as  Approved  in  U.  S.  vs.  Nixon 

et  al.,  235  U.  S. 

231. 

The  grand  jurors  of  the  United  States  of  America, 
duly  and  legally  chosen,  selected,  summoned  and  drawn 
from  the  body  of  the  Western  Division  of  the  Western 
District  of  Missouri,  and  duly  and  legally  examined,  em- 
paneled, sworn  and  charged  to  inquire  of  and  concern- 
ing crimes  and  offenses  against  the  United  States  in  the 
Western  Division  of  the  Western  District  of  Missouri, 
on  their  oaths  present  and  charge  that  on  or  about  the 
16th  day  of  August,  A.  D.  1913,  and  at  all  times  herein- 
after mentioned,  one  William  C.  Nixon  and  one  William 
B.  Biddle,  and  one  Thomas  H.  West,  were  the  duly  ap- 
pointed, qualified  and  acting  receivers  of  the  St.  Louis 
and  San  Francisco  Railroad  Company,  a  corporation 
duly  organized  and  incorporated  according  to  law,  and 
that  as  such  receivers  the  said  William  C.  Nixon  and 
the  said  William  B.  Biddle  and  the  said  Thomas  H.  West 
on  the  16th  day  of  August,  A.  D.  1913,  had  charge  of  and 
were  managing,  conducting,  and  operating  the  property 
and  business  of  said  corporation  as  a  common  carrier 
of  freight,  live  stock,  cattle,  and  other  animals  for  hire 
in  interstate  commerce  from  Hugo,  Choctaw  County  in 
the  State  of  Oklahoma,  to  Kansas  City,  Jackson  County, 
in  the  State  of  Missouri;  that  on  or  about  the  16th  day 
of  August,  1913,  at  Hugo,  Choctaw  County,  Oklahoma, 
a  certain  shipment  of  thirty-eight  head  of  cattle,  con- 
signed by  H.  L.  Sanguin  to  the  Clay-Robinson  Live  Stock 
Commission  Company,  Kansas  City,  Missouri,  was  de- 
livered to  the  St.  Louis  and  San  Francisco  Railroad 
Company,  and  said  receivers  for  transportation  from 
Hugo,  Choctaw  County,  Oklahoma,  to  Kansas  City,  Jack- 
son County,  Missouri,  and  which  said  shipment  was  by 
said  Railroad  Company  and  said  receivers  transported 
in  M.  K.  &  T.  car  number  40669,  in  interstate  commerce 
from  Hugo,  Choctaw  County,  Oklahoma,  to  Kansas  City, 


732  Federal  Criminal  Law  Procedure. 

Jackson  County,  Missouri,   and  delivered  to  the  Clay- 
Eobinson  Live  Stock  Commission  Company  as  aforesaid. 
And  the  grand  jurors  aforesaid,  on  their  oaths  afore- 
said, do  further  present  and  charge  that  the  Secretary 
of  Agriculture  of  the  United  States,  pursuant  to  and  by 
virtue  of  the  power  and  authority  in  him  vested  by  the 
act  of  Congress,  of  the  United  States  approved  March  3, 
1905,  did  on  or  about  the  7th  day  of  February,  1913, 
determine  the  fact  to  be  that  within  certain  portions  of 
the  State  of  Oklahoma,  and  more  particularly  within  and 
including  the  county  of  Choctaw,  in  the  State  of  Okla- 
homa, there  existed  among  the  cattle  a  contagious  and 
infectious  disease  known  as  splenetic,  southern,  or  Texas 
fever,  and  did  on  or  about  the  7th  day  of  February,  1913, 
in  accordance  with  the  law  in  such  cases  made  and  pro- 
vided, make,  issue,  and  promulgate  an  order  quarantin- 
ing certain  portions  of  the  State  of  Oklahoma,  and  more 
particularly  and  including  the  county  of  Choctaw,  in  the 
State  of  Oklahoma,  and  did  forbid  the  removal  or  trans- 
portation of  cattle  from  said  county  of  Choctaw,  in  the 
State  of  Oklahoma,  into  any  other  State  or  Territory  in 
the  United  States  not  within  the  quarantined  district  so 
established  by  the  said  Secretary  of  Agriculture  of  the 
United  States,  except  in  accordance  with  the  rules  and 
regulations  made  and  promulgated  by  the  Secretary  of 
Agriculture    of    the    United    States    and    then    in  full 
force     and     effect;     that     the     said     order     and     regu- 
lation   of    said    Secretary    of    Agriculture    was    duly 
published,     in     accordance    with     law,     in     The    Daily 
Oklahoma,     a     newspaper     duly     and     regularly     pub- 
lished  in    Oklahoma    City,    Oklahoma,    in    its   issue    of 
February  25,  1913;  that  notice  of  said  order  made,  is- 
sued, and  promulgated  by  the  Secretary  of  Agriculture 
as  aforesaid  was  duly  and  legally  served  upon  said  de- 
fendant,   St.    Louis    and  San  Francisco  Railroad  Com- 
pany, by  service  upon  F.  C.  Reilly,  assistant  freight  traf- 
fic manager  of  said  railroad  company,  at  St.  Louis,  Mis- 
souri, a  duly  and  legally  qualified  agent  of  said  railroad 
company,  and  service  thereof  was  duly  acknowledged  on 
March  10,  1913. 


Form  of  Indictment  733 

That  the  Secretary  of  Agriculture  of  the  United  States, 
pursuant  to  and  by  virtue  of  the  power  and  authority 
in  him  vested  by  the  act  of  Congress  of  the  United  States 
approved  March  3,  1905,  did  on  or  about  the  17th  day  of 
March,  1909,  make,  issue,  and  promulgate  the  following- 
rule  and  regulation  governing  the  transportation  of  cat- 
tle and  other  live  stock  from  the  territory  quarantined 
under  the  law  hereinbefore  referred  to,  and  made,  issued, 
and  promulgated  by  the  said  Secretary  of  Agriculture 
of  the  United  States  as  aforesaid,  as  follows: 

"The  proper  officers  of  the  transportation  companies 
shall  securely  affix  to  both  sides  of  all  cars  carryng  in- 
terstate shipments  of  cattle  from  the  quarantined  area 
(except  those  accompanied  by  certificates  of  inspection 
issued  by  inspectors  of  the  Bureau  of  Animal  Industry, 
covering  shipments  of  cattle  dipped  as  provided  in  Reg- 
ulation 17  hereof,  and  shipments  of  cattle  from  certain 
areas  described  in  the  'Rule  to  prevent  the  spread  of 
splenetic  fever  in  cattle,'  which  rule  should  be  construed 
in  connection  with  these  regulations)   durable  placards 
not  less  than  5  1-2  by  8  inches  in  size,  on  which  shall  be 
printed  with  permanent  black  ink  and  in  boldface  letters 
not  less  than  1  1-2  inches  in  height  the  words  'Southern 
Cattle.'    These  placards  shall  also  show  the  name  of  the 
place  from  which  the  shipment  was  made,  the  date  of  the 
shipment  (which  must  correspond  with  the  date  of  the 
waybills  and  other  papers),  the  name  of  the  transpor- 
tation company,  and  the  name  of  the  place  of  destina- 
tion.   Each  of  the  waybills,  conductors'  manifests,  mem- 
oranda, and  bills  of  lading  pertaining  to  such  shipments 
by  cars  or  boats  shall  have  the  words  'Southern  Cattle' 
plainly  written   or  stamped  upon   its  face.     Whenever 
such  shipments  are  transferred  to  another  transporta- 
tion company  or  into  other  cars  or  boats,  or  are  rebilled 
or  reconsigned  from  any  point  not  in  the  quarantined 
area  to  a  point  other  than  the  original  destination,  the 
cars  into  which  said  cattle  are  transferred  and  the  new 
waybills,   conductors'  manifests,   memoranda,   and  bills 
of  lading  covering  said  shipments  by  cars  or  boats  shall 
be  marked   as  herein   specified  for  cars   carrying   said 


73-4  Federal  Criminal  Law  Procedure. 

cattle  from  the  quarantined  area,  and  for  the  billing, 
etc.,  covering  the  same.  If  for  any  reason  the  placards 
required  by  this  regulation  are  removed  from  the  cars 
or  are  destroyed  or  rendered  illegible,  they  shall  be  im- 
mediately replaced  by  the  transportation  company  or  its 
agents,  the  intention  being  that  legible  placards  desig- 
nating the  shipment  as  'Southern  Cattle'  shall  be  main- 
tained on  the  car  from  the  time  such  shipments  leave  the 
quarantined  area  until  they  are  unloaded  at  final  des- 
tination and  the  cars  are  treated  as  hereinafter  speci- 
fied." 

That  notice  of  said  order  and  regulation  of  said  Secre- 
tary of  Agriculture  was  published  in  accordance  with 
law  in  The  Daily  Oklahoman,  a  newspaper  duly  and  reg- 
ularly published  in  Oklahoma  City,  Oklahoma,  in  its  is- 
sue of  March  24,  1909,  and  that  notice  of  said  order, 
made,  issued  and  promulgated  by  the  Secretary  of  Ag- 
riculture as  aforesaid,  was  served  upon  the  defendant 
by  service  upon  E.  K.  Voorhees,  general  freight  agent, 
of  said  railroad  company  at  St.  Louis,  Missouri,  and  a 
duly  authorized  agent  of  said  Company,  and '  service 
thereof  duly  acknowledged  on  March  30,  1909;  that  said 
Hugo,  Choctaw  County,  Oklahoma,  is  within  the  quar- 
antined district,  and  within  the  territory  established  and 
declared  by  the  said  order  regulation  of  the  Secretary  of 
Agriculture  of  the  United  States  as  territory  within 
which  there  existed  among  the  cattle  a  contagious  and 
infectious  disease  known  as  splenetic,  southern,  or  Texas 
fever. 

And  the  grand  jurors  aforesaid,  on  their  oaths  afore- 
said, do  further  present  and  charge  that  on  or  about 
the  16th  day  of  August,  A.  D.  1913,  the  said  St.  Louis 
and  San  Francisco  Railroad  Company,  common  carrier 
as  aforesaid,  and  William  C.  Nixon  and  William  B.  Bid- 
die  and  Thomas  H.  West,  receivers  as  aforesaid,  did  un- 
lawfully, wilfully,  and  feloniously  receive  for  transpor- 
tation the  said  thirty-eight  head  of  cattle  consigned  by 
H.  L.  Sanguin  to  the  Clay -Robinson  Live  Stock  Com- 
mission Company,  and  did  then  and  there  unlawfully, 
wilfully,  and  feloniously  transport  said  shipment  of  cat- 
tle as  aforesaid  from  Hugo,  Choctaw  County,  Oklahoma, 


Form  of  Indictment  735 

a  point  within  that  portion  of  the  State  of  Oklahoma 
quarantined  by  order  of  the  Secretary  of  Agriculture  of 
the  United  States  as  aforesaid  into  Kansas  Citv,  Jackson 
County,  Missouri,  in  the  division  and  district  aforesaid, 
the  same  being  a  point  in  an  area  and  portion  of  the  of 
the  United  States  beyond  and  without  the  quarantined 
district  theretofore  established  by  the  said  Secretary  of 
Agriculture  as  aforesaid  beyond  and  outside  of  Choc- 
taw County,  Oklahoma;  that  the  said  defendants,  the 
said  St.  Louis  and  San  Francisco  Railroad  Company  and 
said  receivers  as  aforesaid  received  said  cattle  for  trans- 
portation as  aforesaid,  and  transported  and  delivered  the 
same  to  the  consignee  at  Kansas  City,  Missouri,  as  afore- 
said, when  the  cars  in  which  said  cattle  were  transported 
by  said  defendants  as  aforesaid  did  not  have  securely 
affixed  to  both  sides  thereof  durable  placards  of  not  less 
than  five  and  one-half  inches  by  eight  inches  in  size,  on 
which  was  printed  with  permanent  black  ink,  in  bold- 
face letters  of  not  less  than  one  and  one-half  inches  in 
height,  the  words,  "Southern  Cattle,"  or  any  other  in- 
formation concerning  or  pertaining  to  said  shipment,  as 
required  by  the  statutes  and  regulations  of  the  said  Sec- 
retary of  Agriculture,  as  hereinbefore  set  forth,  and 
when  the  waybills,  conductors'  manifests  and  memo- 
randa, and  bills  of  lading  pertaining  to  said  shipment 
did  not  have  the  words,  "Southern  Cattle"  plainly  writ- 
ten or  stamped  upon  their  face,  as  required  by  the  stat- 
utes, rules,  and  regulations  made  and  promulgated  by 
the  Secretary  of  Agriculture  as  aforesaid,  contrary  to 
the  form  of  the  statute  in  such  cases  made  and  provided 
and  against  the  peace  and  dignity  of  the  United  States. 

Form  of  Indictment  for  Fraudulent  Use  of  the  Mail, 

Section  215,  Approved  in  Belden  vs. 

United  States,  Fed.  223,  726. 

The  indictment  charges  Russell  G.  Belden  and  A.  Eu- 
gene Wayland  with  having,  prior  to  January  18,  1911, 
devised,  and  intended  to  devise,  a  scheme  and  artifice  to 
defraud  one  John  Neiderer,  and  divers  other  persons  to 
the  grand  jury  unknown,  which  said  scheme  and  artifice 
to  defraud  was  to  be  effected  by  the  use  and  misuse  of 


736  Federal  Criminal  Law  Procedure. 

the  United  States  postoffice  establishment,  with  intent 
to  incite  and  induce  such  persons  so  intended  to  be  de- 
frauded to  open  correspondence  with  them,  by  means  of 
printed  circulars,  letters,  and  reports  distributed  through 
the  mail,  deposited  and  caused  to  be  deposited  in  said 
United  States  mail  for  mailing  and  delivery  to  such  di- 
vers persons  intended  to  be  defrauded,  which  said  scheme 
and  artifice  to  defraud  so  devised  and  intended  to  be 
devised  by  said  defendants,  and  each  of  them,  was  sub- 
stantially as  follows: 

That  defendants  would  cause  to  be  organized  a  cor- 
poration to  be  styled  the  International  Development  Com- 
pany, to  be  controlled  and  managed  by  defendants,  and 
each  of  them,  the  purpose  of  the  corporation  being  to 
act  as  the  fiscal  agent  for  certain  other  corporations  and 
firms  thereafter  to  be  incorporated  and  organized  by 
said  defendants  as  a  part  of  their  scheme  to  defraud; 
that  defendants  would,  by  themselves  and  through  the 
Development  Company,  cause  to  be  procured  and  ob- 
tained certain  coal  claims,  having  little  or  no  value,  situ- 
ated in  British  Columbia,  Dominion  of  Canada,  and 
would  cause  to  be  organized  a  corporation  to  be  styled 
the  Michel  Coal  Mines,  Limited,  with  a  capital  stock  of 
1,500,000  shares,  of  the  par  value  of  $1  each,  said  claims 
to  be  transferred  to  said  Michel  Coal  Mines,  Limited,  in 
consideration  that  the  said  Michel  Company  would  issue 
to  defendants   and  the  Development   Company   a   large 

majority  of  its  capital  stock,  fully  paid  up;  that  defend- 
ants would  thereafter  procure  and  cause  to  be  procured 
other  claims  adjoining  the  aforesaid  claims,  and  would 
thereafter  cause  to  be  organized  another  corporation  to 
be  styled  the  Crown  Coal  &  Coke  Company,  with  a  cap- 
ital stock  of  2,000,000  shares,  of  the  par  value  of  $1  each, 
for  the  purpose  of  taking  over  said  coal  claims,  and  that 
in  consideration  therefor  the  Crown  Coal  &  Coke  Com- 
pany would  issue  to  defendants  and  the  Development 
(  ornpany  a  large  amount  of  the  capital  stock  of  said 
Crown  Company,  fully  paid  up;  that  defendants  would 
cause  to  be  procured  other  claims,  and  cause  to  be  organ- 
ized another  corporation,  to  be  styled  the  Empire  Coal 
&  Coke  Company,  with  a  capital  stock  of  1,500,000  shares 


Foem  of  Indictment  737 

of  the  par  value  of  $1  each,  for  the  purpose  of  taking 
over  said  claims,  in  consideration  that  said  Empire  Com- 
pany would  transfer  to  defendants  and  the  Development 
Company  a  large  majority  of  the  stock  of  said  corpora- 
tion, fully  paid  up;  that  defendants  would  cause  to  be 
procured  a  charter  for  the  construction  and  operation 
of  a  railroad,  ostensibly  to  furnish  transportation  facili- 
ties for  the  product  of  the  alleged  coal  mines,  and  to  be 
operated  in  connection  therewith,  and  would  cause  to 
be  organized  a  corporation  to  be  styled  the  Crows'  Nest 
&  Northern  Railway  Company,  with  a  capital  stock  of 
20,000  shares,  of  the  par  value  of  $100  each,  the  said 
charter  to  be  transferred  to  the  said  Railway  Company 
in  consideration  of  the  transfer  by  said  Railway  Com- 
pany to  defendants  and  the  Development  Company  of 
a  large  amount  of  its  capital  stock;  that  the  balance  of 
the  capital  stock  of  each  of  the  aforesaid  corporations, 
namely,  the  Michel  Company,  the  Crown  Company,  the 
Empire  Company,  and  the  Railroad  Company  should  and 
would  become  the  treasury  stock  of  each  of  said  corpora- 
tions, respectively;  that  defendants  would  from  time  to 
time  dispose  of  large  amounts  of  the  capital  stock  of  the 
various  corporations  which  had  been  transferred  to  them 
and  the  Development  Company;  that  by  means  of  stock 
ownership  in  the  Development  Company  defendants 
would  procure  and  maintain  the  management  and  control 
of  the  Development  Company,  and  through  said  owner- 
ship, and  by  manipulation  of  the  stock  and  books  on  ac- 
count of  the  various  corporations,  said  defendants  would 
obtain  and  maintain  control  of  all  such  corporations  with 
intent  and  purpose  to  defraud  said  divers  persons. 

It  was  further  a  part  of  the  scheme  that  defendants, 
in  their  own  names  and  in  the  names  of  the  Development 
Company,  by  means  of  letters,  notices,  reports,  circulars, 
and  a  prospectus  sent  and  to  be  sent  through  the  United 
States  post-office  establishment,  would  induce  persons 
to  purchase  shares  of  the  capital  stock  of  the  aforesaid 
various  corporations;  and,  in  pursuance  of  such  scheme, 
defendants  did  represent  and  state  that  the  properties 
owned  by  said  corporations,  and  the  capital  stock  there- 
of, were  and  would  become  of  great  value,  whereas  in 

47 


738  Federal  Criminal  Law  Procedure. 

truth  and  in  fact,  as  defendants  well  knew,  the  properties 
had  no  value,  except  that  the  claims  of  the  Crown  Coal 
&  Coke  Company  contained  valuable  deposits  of  coal, 
which  fact  was  fraudulently  used  by  the  defendants  and 
the  Development  Company  to  aid  them  in  the  sale  of  the 
worthless  stock  of  the  aforesaid  various  corporations  so 
held  individually  by  defendants  and  the  Development 
Company,  and  did  falsely  and  fraudulently  represent  and 
pretend  that  the  claims  of  the  Michel  Company  and  the 
Empire  Company  contained  valuable  deposits  of  a  very 
high  quality  of  coal,  all  of  which  was  false,  as  defend- 
ants well  knew,  and  did  further  falsely  represent  that 
the  Railway  Company  had  acquired  a  right  of  way  for 
the  construction  of  a  railroad  a  distance  of  15  miles,  that 
they  would  construct  and  operate  said  road  in  connec- 
tion with  the  mines,  and  that  the  proceeds  to  be  derived 
from  sales  of  stock  would  be  used  to  build  and  equip  said 
railroad  and  develop  and  equip  said  coal  mines,  where- 
as in  truth  and  in  fact,  as  defendants  well  knew,  the 
Railway  Company  had  not  acquired  a  right  of  way,  and 
proceeds  derived  from  the  sale  of  said  stock  would  not 
be,  and  the  same  were  not,  used  to  equip  and  develop 
the  respective  properties  of  said  corporation,  or  to  build 
said  railroad,  but  that  a  large  sum  realized  from  such 
stock  was  diverted  to  the  use  of  the  defendants,  all  with 
the  intent  and  purpose  to  defraud  said  divers  persons. 

And  it  was  further  a  part  of  the  scheme  to  represent 
to  intending  purchasers  of  stock  in  the  Empire  Company 
that  with  each  $500  purchase  there  would  be  given  a  share 
of  stock  in  the  Railway  Company,  that  of  the  proceeds 
received  by  the  Empire  Company  $100  would  be  used  by 
that  company  in  the  purchase  of  one  share  in  the  Rail- 
way Company,  and  that  the  $100  so  expended  would  be 
placed  in  the  treasury  of  the  Railway  Company  to  be  used 
in  the  construction  of  said  road,  whereas  in  truth  and  in 
fact,  as  the  defendants  well  knew,  no  part  of  said  $100 
would  be  used  for  the  equipment  and  development  of  the 
pany,  or  used  for  the  construction  of  said  railroad,  but 
would  be  and  was  appropriated  by  defendants  to  their 
own  use  and  benefit.  And  it  was  a  further  part  of  the 
scheme  that  defendants  would  represent  and  pretend  that 


Form  of  Indictment  739 

the  stock  of  the  various  corporations  to  be  offered  for 
sale  would  be  treasury  stock  of  the  various  corporations, 
and  that  the  proceeds  derived  from  the  sale  of  such  stock 
would  be  used  for  the  equipment  and  development  of  the 
properties,  whereas,  in  truth  and  in  fact,  as  defendants 
well  knew,  the  stock  so  sold  was  not  treasury  stock,  but 
was,  with  but  few  exceptins,  the  individual  stock  of  de- 
fendants and  the  Development  Company,  and  all  the 
real  property  and  a  large  amount  of  the  money  derived 
from  the  sales  of  such  stock  were  appropriated  by  de- 
fendants and  the  Development  Company  to  their  own 
use  and  benefit,  it  being  the  intent  and  purpose  of  the  de- 
fendants thus  to  divert  the  vast  amount  of  property  and 
large  amount  of  money  so  obtained  to  their  own  use  and 
benefit  and  that  of  the  Development  Company,  with  in- 
tent and  purpose  to  defraud  the  said  John  Neiderer  and 
said  divers  other  persons. 

And  the  said  defendants,  on  or  about  January  21,  1911, 
for  the  purpose  of  executing  said  scheme  and  artifice, 
and  attempting  so  to  do,  knowingly,  willfully  and  feloni- 
ously placed  and  caused  to  be  placed  in  the  post-office 
of  the  United  States  at  Spokane,  Wash.,  for  mailing  and 
delivery  a  certain  letter  addressed  to  Mr.  John  Neiderer, 
Summerville,  Ore.  Then  follows  a  copy  of  the  letter, 
signed  "International  Development  Co.,  per  R.  G.  Bel- 
den." 

Form  for  Indictment  for  Conspiracy  to  Violate  White 
Slave  Act,  Approved  in  Linton  vs.  U.  S.,  223 
Federal,  677. 

"at  Vancouver,  in  the  province  of  British  Columbia,  in  the  Dominion 
of  Canada,  on  the  first  day  of  January,  A.  D.  one  thousand  nine  hun- 
dred and  thirteen,  then  and  there  being,  did  willfully,  knowingly, 
feloniously,  unlawfully,  wickedly,  and  maliciously  conspire,  combine, 
confederate,  and  agree  together,  and  together  and  with  divers  other 
persons  to  said  grand  jurors  unknown,  to  commit  an  offense  against 
the  United  States,  to  wit,  to  violate  the  'White  Slave  Traffic  Act'  of 
June  25,  1910  (36  Statutes  at  Large,  825),  in  the  following  manner 
and  particulars;  that  is  to  say:  It  was  the  purpose  and  object  of  the 
said  conspirators,  and  each  of  them  to  willfully,  knowingly,  and  felo- 
niously transport  and  cause  to  be  transported,  and  aid  and  assist  in 
obtaining  transportation  for,  and  in  transporting,  a  woman,  to  wit, 
the  said  Alta  Smith,  alias  as  aforesaid,  in  foreign  commerce  from  the 


740  Federal  Criminal  Law  Procedure. 

city  of  Vancouver,  in  the  said  province  of  British  Columbia,  to  the 
City  of  Seattle,  in  the  Northern  division  of  the  Western  District  of 
Washington,  in  the  United  States  of  America,  for  the  purpose  of 
prostitution,  debauchery,  concubinage,  and  other  immoral  purposes, 
all  in  violation  of  the  White  Slave  Traffic  Act.  as  aforesaid.     *     *     *" 

Form  of  Indictment  in  U.  S.  vs.  Jack  Johnson,  White 

Slave  Violation. 

NORTHERN  DISTRICT  OF  ILLINOIS        {    gt 
Eastern  Division.  \ 

The  grand  jurors  of  the  United  States  of  America,  in- 
quiring for  the  Eastern  Division  of  the  Northern  Dis- 
trict of  Illinois,  upon  their  oaths  present  that  JOHN 
ARTHUR  JOHNSON,  otherwise  known  as  Jack  John- 
son, late  of  the  city  of  Chicago,  on,  to  wit,  the  15th  day 
of  October,  in  the  year  of  our  Lord  nineteen  hundred 
and  ten,  unlawfully  and  knowingly  did  cause  to  be  trans- 
ported in  interstate  commerce,  that  is  to  say  from  Pitts- 
burgh, in  the  state  of  Pennsylvania,  to  Chicago,  in  the 
state  of  Illinois,  through  the  said  Eastern  Division  of 
the  said  Northern  District  of  Illinois,  over  the  railway 
routes  of  certain  corporation  common  carriers,  to  wit, 
Pennsylvania  Company,  a  corporation  under  the  laws  of 
the  State  of  Pennsylvania,  and  Pittsburgh,  Ft.  "Wayne 
and  Chicago  Railway  Company,  a  corporation  under  the 
laws  of  the  State  of  Illinois,  which  corporation  common 
carriers  were  then  and  there  engaged  in  the  transporta- 
tion of  persons  by  railroad  over  their  railway  routes  from 
Pittsburgh,  in  the  State  of  Pennsylvania,  to  Chicago,  in 
the  State  of  Illinois,  a  certain  girl,  to  wit,  Belle  Schreiber, 
otherwise  known  as  Mrs.  J.  Johnson,  for  the  purpose  of 
prostitution;  against  the  peace  and  dignity  of  the  said 
United  States,  and  contrary  to  the  form  of  the  statute 
of  the  same  in  such  case  made  and  provided. 

2.  And  the  grand  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  further  present  that  the  said  John  Arthur 
Johnson,  otherwise  known  as  Jack  Johnson,  late  of  the 
city  of  Chicago,  on,  to  wit,  the  15th  day  of  October,  in 
the  year  of  our  Lord  nineteen  hundred  ten,  unlawfully 
and  knowingly  did  cause  to  be  transported  in  interstate 
commerce,  that  is  to  say  from  Pittsburgh,  in  the  state 


Form  of  Indictment  741 

of  Pennsylvania,  to  Chicago,  in  the  state  of  Illinois, 
through  the  said  Eastern  Division  of  the  said  Northern 
District  of  Illinois,  over  the  railway  routes  of  certain  cor- 
poration common  carriers,  to  wit,  Pennsylvania  Com- 
pany, corporation  under  the  laws  of  the  state  of  Penn- 
sylvania, and  Pittsburgh,  Ft.  Wayne  and  Chicago  Rail- 
way Company,  a  corporation  under  the  laws  of  the  state 
of  Illinois,  which  corporation  common  carriers  were  then 
and  there  engaged  in  the  transportation  of  persons  by 
railroad  over  their  railway  routes  from  Pittsburgh,  in 
the  state  of  Pennsylvania,  to  Chicago,  in  the  state  of 
Illinois,  a  certain  girl,  to  wit,  Belle  Schreiber,  otherwise 
known  as  Mrs.  J.  Johnson,  for  the  purpose  of  debauchery; 
against  the  peace  and  dignity  of  the  said  United  States, 
and  contracy  to  the  form  of  the  statute  of  the  same  in  such 
case  made  and  provided. 

3.  And  the  grand  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  further  present  that  the  said  John  Arthur 
Johnson,  otherwise  known  as  Jack  Johnson,  late  of  the 
city  of  Chicago,  on,  to  wit,  the  15th  day  of  October,  in 
the  year  of  our  Lord  nineteen  hundred  ten,  within  the 
division  and  district  aforesaid,  unlawfully,  knowingly 
and  feloniously  did  cause  to  be  transported  in  interstate 
commerce,  that  is  to  say,  from  Pittsburgh,  in  the  state  of 
Pennsylvania,  to  Chicago,  in  the  state  of  Illinois,  through 
the  said  Eastern  Division  of  the  said  Northern  District 
of  Illinois,  over  the  railway  routes  of  certain  corporation 
common  carriers,  to  wit,  Pennsylvania  Company,  a  cor- 
poration under  the  laws  of  the  state  of  Pennsylvania, 
and  Pittsburgh,  Ft.  Wayne  and  Chicago  Railway  Com- 
pany, a  corporation  under  the  laws  of  the  sate  Illinois, 
which  corporation  common  carriers  were  then  and  there 
engaged  in  the  transportation  of  persons  by  railroad 
over  their  railway  routes  from  Pittsburgh,  in  the  state 
of  Pennsylvania,  to  Chicago,  in  the  state  of  Illinois,  a 
certain  girl,  to  wit,  Belle  Schreiber,  otherwise  known  as 
Mrs.  J.  Johnson,  for  the  purpose  of  prostitution;  against 
the  peace  and  dignity  of  the  said  United  States,  and  con- 
trary to  the  form  of  the  statute  of  the  same  in  such  case 
made   and  provided. 


742  Federal  Criminal  Law  Procedure. 

4.  And  the  grand  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  further  present  that  the  said  John  Arthur 
Johnson,  otherwise  known  as  Jack  Johnson,  late  of  the 
city  of  Chicago,  on,  to  wit,  the  15th  day  of  October,  in 
the  year  of  our  Lord  nineteen  hundred  ten,  within  the 
division  and  district  aforesaid,  unlawfully,  knowingly 
and  feloniously  did  cause  to  be  transported  in  interstate 
commerce,  that  is  to  say,  from  Pittsburgh,  in  the  state 
of  Pennsylvania,  to  Chicago,  in  the  state  of  Illinois, 
through  the  said  Eastern  Division  of  the  said  Northern 
District  of  Illinois,  over  the  railway  routes  of  certain 
corporation  common  carriers,  to  wit,  Pennsylvania  Com- 
pany, a  corporation  under  the  laws  of  the  state  of  Penn- 
sylvania, and  Pittsburgh,  Ft.  Wayne  and  Chicago  Rail- 
way Company,  a  corporation  under  the  laws  of  the  state 
of  Illinois,  which  corporation  common  carriers  were  then 
and  there  engaged  in  the  transportation  of  persons  by 
railroad  over  their  railway  routes  from  Pittsburgh,  in  the 
state  of  Pennsylvania,  to  Chicago,  in  the  state  of  Illinois, 
a  certain  girl,  to  wit,  Belle  Schreiber,  otherwise  known 
as  Mrs.  J.  Johnson,  for  the  purpose  of  debauchery;  ag- 
ainst the  peace  and  dignity  of  the  said  United  States, 
and  contrary  to  the  form  of  the  statute  of  hast  enmie 
and  contrary  to  the  form  of  the  statute  of  the  same  in 
such  case  made  and  provided. 

5.  And  the  grand  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  further  present  that  the  said  John  Arthur 
Johnson,  otherwise  known  as  Jack  Johnson,  late  of  the 
city  of  Chicago,  on,  to  wit,  the  15th  day  of  October,  in 
the  vear  of  our  Lord  nineteen  hundred  and  ten,  unlaw- 
fully,  knowingly  and  feloniously  did  aid  in  obtaining 
transportation  for  a  certain  girl,  to  wit,  Belle  Schreiber, 
otherwise  known  as  Mrs.  Jack  Johnson,  in  interstate 
commerce,  that  is  to  say,  from  Pittsburgh,  in  the  state 
of  Pennsylvania,  to  Chicago,  in  the  state  of  Illinois, 
through  the  said  Eastern  Division  of  the  said  Northern 
District  of  Illinois,  over  the  railway  route  of  certain  com- 
mon  carriers,  to  wit,  Pennsylvania  Company,  a  corpora- 
tion under  the  laws  of  the  state  of  Pennsylvania  and 
Pittsburgh,  Ft.  Wayne  &  Chicago  Railway  Company,  a 
corporation  under  the  laws  of  the  state  of  Illinois,  which 


Form  of  Indictment  743 

corporation  common  carriers  were  then  and  there  en- 
gaged in  the  transportation  of  persons  by  railroad  over 
their  railway  route  from  Pittsburgh  aforesaid  to  Chicago 
aforesaid,  for  a  certain  immoral  purpose,  to  wit,  for  the 
purpose  of  having  unlawful  sexual  intercourse  with  her, 
the  said  Belle  Schreiber,  otherwise  known  as  Mrs.  Jack 
Johnson;  against  the  peace  and  dignity  of  the  said  United 
States,  and  contrary  to  the  form  of  the  statute  of  the 
same  in  such  case  made  and  provided. 

6.  And  the  grand  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  further  present  that  the  said  John  Arthur 
Johnson,  otherwise  known  as  Jack  Johnson,  late  of  the 
city  of  Chicago,  on,  to  wit,  the  15th  day  of  October,  in 
the  year  of  our  Lord  nineteen  hundred  and  ten,  unlaw- 
fully, knowingly  and  feloniously  did  assist  in  obtaining 
transportation  for  a  certain  girl,  to  wit,  Belle  Schreiber, 
otherwise  known  as  Mrs.  Jack  Johnson,  in  interstate 
commerce,  that  is  to  say,  from  Pittsburgh  in  the  state  of 
Pennsylvania,  to  Chicago,  in  the  state  of  Illinois,  through 
the  said  Eastern  Division  of  the  said  Northern  District 
of  Illinois,  over  the  railway  routes  of  certain  common 
carriers,  to  wit,  Pennsylvania  Company,  a  corporation 
under  the  laws  of  the  state  of  Pennsylvania  and  Pitts- 
burgh, Ft.  Wayne  Chicago  Railway  Company,  a  cor- 
poration under  the  laws  of  the  state  of  Illinois,  which 
corporation  common  carries  were  then  and  there  engaged 
in  the  transporation  of  persons  by  railroad  over  their 
railway  routes  from  Pittsburgh  aforesaid  to  Chicago 
aforesaid,  for  a  certain  immoral  purpose,  to  wit,  for  the 
purpose  of  committing  the  crime  against  nature  with 
her  the  said  Belle  Schreiber,  otherwise  known  as  Mrs. 
Jack  Johnson;  against  the  peace  and  dignity  of  the 
said  United  States,  and  contrary  to  the  form  of  the  stat- 
ute of  the  same  in  such  case  made  and  provided. 

7.  And  the  grand  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  further  present  that  the  said  John  Arthur 
Johnson,  otherwise  known  as  Jack  Johnson,  late  of  the 
city  of  Chicago,  on,  to  wit,  the  15th  day  of  October,  in 
the  year  of  our  Lord  nineteen  hundred  and  ten,  unlaw- 
fully, knowingly  and  feloniously  did  cause  to  be  procur- 
ed a  certain  railroad  ticket,  the  exact  nature  and  descrip- 


744  Federal  Criminal  Law  Procedure. 

tion  of  which  is  to  the  said  grand  jurors  unknown  (which 
said  railroad  ticket  entitled  in  the  holder  thereof  to  be 
transported  from  Pittsburgh,  Pennsylvania,  to  Chicago, 
Illinois,  over  the  railway  routes  of  certain  common  car- 
riers hereafter  mentioned)  to  be  used  by  a  certain  girl, 
to  wit,  Belle  Schreiber,  otherwise  known  as  Mrs.  Jack 
Johnson,  in  interstate  commerce,  that  is  to  say,  in  going 
from  Pittsburgh  in  the  state  of  Pennsylvania  to  Chicago 
in  the  state  of  Illinois,  over  the  railway  routes  of  certain 
corporation  common  carriers,  to  wit,  Pennsylvania  Com- 
pany, a  corporation  under  the  laws  of  the  state  of  Penn- 
sylvania, and  Pittsburgh,  Ft.  Wayne  and  Chicago  Rail- 
way Company,  a  corporation  under  the  laws  of  Illinois, 
which  corporation  common  carriers  were  then  and  there 
engaged  in  the  transportation  of  persons  by  railroad  over 
their  railway  routes  from  Pittsburgh,  in  the  state  of 
Pennsylvania,  to  Chicago,  in  the  state  of  Illinois,  for  the 
purpose  of  prostitution,  whereby  said  girl  Belle  Schrei- 
ber, otherwise  known  as  Mrs.  Jack  Johnson,  was  then  and 
there  transported  in  interstate  commerce  from  Pittsburgh 
aforesaid  to  Chicago  aforesaid,  over  the  railway  routes 
of  said  corporation  common  carriers;  against  the  peace 
and  dignity  of  the  said  United  States  and  contrary  to  the 
form  of  the  statute  of  the  same  in  such  case  made  and 
provided. 

8.  And  the  grand  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  further  present  that  the  said  John  Arthur 
Johnson,  otherwise  known  as  Jack  Johnson,  late  of  the 
city  of  Chicago,  on,  to  wit,  the  15th  day  of  October,  in 
the  year  of  our  Lord  nineteen  hundred  and  ten,  unlaw- 
fully, knowingly  and  feloniously  did  aid  in  procuring 
a  certain  railroad  ticket,  the  exact  nature  and  descrip- 
tion of  which  is  to  the  said  grand  jurors  unknown  (which 
said  railroad  ticket  entitled  the  holder  thereof  to  be  trans- 
ported from  Pittsburgh,  Pennsylvania,  to  Chicago,  Illi- 
nois, over  the  railway  route  of  certain  common  carriers 
hereafter  mentioned)  to  be  used  by  a  certain  girl,  to  wit, 
Belle  Schreiber,  otherwise  known  as  Mrs.  Jack  Johnson, 
in  interstate  commerce,  that  is  to  say,  in  going  from  Pitts- 
burgh in  the  state  of  Pennsylvania  to  Chicago  in  the 
state  of  Illinois,  over  the  railway  route  of  certain  corpora- 


Form  of  Indictment  745 

tion  common  carriers,  to  wit,  Pennsylvania  Company,  a 
corporation  under  the  laws  of  the  state  of  Pennsylvania, 
and  Pittsburgh,  Ft.  Wayne  and  Chicago  Raailway  Com- 
pany, a  corporation  under  the  laws  of  Illinois,  which 
corporation  common  carriers  were  then  and  there  en- 
gaged in  the  transportation  of  persons  by  railroad  over 
their  railway  route  from  Pittsburgh,  in  the  state  of  Penn- 
sylvania, to  Chicago  in  the  state  of  Illinois,  for  a  certain 
immoral  purpose,  to  wit,  for  the  purpose  of  having  un- 
lawful sexual  intercourse  with  her,  the  said  Belle  Schrei- 
ber,  otherwise  known  as  Mrs.  Jack  Johnson,  whereby 
said  girl,  Belle  Schreiber,  otherwise  known  as  Mrs.  Jack 
Johnson,  was  then  and  there  transported  in  interstate 
commerce  from  Pittsburgh  aforesaid  to  Chicago  afore- 
said, over  the  railway  route  of  said  corporation  common 
carriers;  against  the  peace  and  dignity  of  the  said  United 
States  and  contrary  to  the  form  of  the  statute  of  the 
same  in  such  case  made  and  provided. 

9.  And  the  grand  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  further  present  that  the  said  John  Arthur 
Johnson,  otherwise  known  as  Jack  Johnson,  late  of  the 
city  of  Chicago,  on,  to  wit,  the  15th  day  of  October,  in 
the  year  of  our  Lord  nineteen  hundred  and  ten,  unlaw- 
fully, knowingly  and  feloniously  did  aid  in  procuring  a 
certain  railroad  ticket,  the  exact  nature  and  description 
of  which  is  to  the  said  grand  jurors  unknown  (which  said 
railroad  ticket  entitled  the  holder  thereof  to  be  trans- 
ported from  Pittsburgh,  Pennsylvania,  to  Chicago  Ill- 
inois, over  the  railroad  routes  of  certain  common  carriers 
hereafter  mentioned)  to  be  used  by  a  certain  girl  to  wit, 
Belle  Schreiber,  otherwise  known  as  Mrs.  Jack  Johnson, 
in  intrstate  commerce,  that  is  to  say,  in  going  from  Pitts- 
burgh in  the  state  of  Pennsylvania  to  Chicago  in  the 
state  of  Illinois,  over  the  railway  routes  of  certain  cor- 
poration common  carriers,  to  wit,  Pennsylvania  Com- 
pany, a  corporation  under  the  laws  of  the  state  of  Pen- 
nsylvania, and  Pittsburgh,  Ft,  Wayne  and  Chicago 
Railway  Company,  a  corporation  under  the  laws  of  Illi- 
nois, which  corporation  common  carriers  were  then  and 
there  engaged  in  the  transporation  of  persons  by  railroad 
over  their  railwav  routes  from  Pittsburgh,  in  the  state 


746  Federal  Criminal  Law  Procedure. 

of  Pennsylvania,  to  Chicago,  in  the  state  of  Illinois,  with 
the  intent  on  the  part  of  said  John  Arthur  Johnson,  other- 
wise known  as  Jack  Johnson,  to  induce  the  said  Belle 
Schreiber  to  give  herself  up  to  the  practice  of  prostitu- 
tion, whereby  said  girl,  Belle  Schrieber,  otherwise  known 
as  Mrs.  Jack  Johnson,  was  then  and  there  transported  in 
interstate  commerce  from  Pittsburgh  aforesaid  to  Chi- 
cago aforesaid,  over  the  railway  routes  of  said  corpora- 
tion common  carriers;  against  the  peace  and  dignity  of 
the  said  United  States,  and  contrary  to  the  form  of  the 
statute  of  the  same  in  such  case  made  and  provided. 

10.  And  the  grand  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  further  present  that  the  said  John  Arthur 
Johnson,  otherwise  known  as  Jack  Johnson,  late  of  the 
city  of  Chicago,  on,  to  wit,  the  15th  day  of  October,  in 
the  year  of  our  Lord  nineteen  hundred  and  ten,  unlaw 
fully  did  knowingly  cause  to  be  transported  in  interstate 
commerce,  that  is  to  say  from  Pittsburgh,  in  the  state  of 
Pennsylvania,  to  Chicago,  in  the  state  of  Illinois,  through 
the  said  Eastern  Division  of  the  said  Northern  District 
of  Illinois,  over  the  railway  route  of  certain  corporation 
common  carriers,  to  wit,  Pennsylvania  Company,  a  cor- 
poration under  the  laws  of  the  state  of  Pennsylvania, 
and  Pittsburgh,  Ft.  Wayne  and  Chicago  Railway  Com- 
pany, a  corporation  under  the  laws  of  the  state  of  Illi- 
nois, which  corporation  common  carriers  were  then  and 
there  engaged  in  the  transportation  of  persons  by  rail- 
road over  their  railway  route  from  Pittsburgh,  in  the 
state  of  Pennsylvania,  to  Chicago,  in  the  state  of  Illinois, 
a  certain  girl,  to  wit,  Belle  Schreiber,  otherwise  known 
as  Mrs.  J.  Johnson,  for  a  certain  immoral  purpose,  to  wit, 
for  the  purpose  of  having  unlawful  sexual  intercourse 
with  her,  the  said  Belle  Schreiber;  against  the  peace  and 
dignity  of  the  said  United  States,  and  contrary  to  the 
from  of  the  statute  of  the  same  in  such  case  made  and 
provided. 

11.  And  the  grand  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present  that  the  said  John  Arthur 
Johnson,  otherwise  known  as  Jack  Johnson,  late  of  the 
city  of  Chicago,  on,  to  wit,  the  15th  day  of  October,  in 
the  year  of  our  Lord  nineteen  hundred  and  ten,  unlaw- 


Form  of  Indictment  747 

fully  did  knowingly  cause  to  be  transported  in  interstate 
commerce,  that  is  to  say  from  Pittsburgh,  in  the  state  of 
Pennsylvania,  to  Chicago,  in  the  state  of  Illinois,  through 
the  said  Eastern  Division  of  the  said  Northern  District 
of  Illinois,  over  the  railway  route  of  certain  corporation 
common  carriers,  to  wit,  Pennsylvania  Company,  a  cor- 
poration under  the  laws  of  the  state  of  Pennsylvania, 
and  Pittsburgh,  Ft.  Wayne  and  Chicago  Railway  Com- 
pany, a  corporation  under  the  laws  of  the  state  of  Illi- 
nois, which  corporation  common  carriers  were  then  and 
there  engaged  in  the  transporation  of  persons  by  rail- 
road over  their  railway  route  from  Pittsburgh,  in  the 
state  of  Pennsylvania,  to  Chicago,  in  the  state  of  Illinois, 
a  certain  girl,  to  wit,  Belle  Schreiber,  otherwise  known 
as  Mrs.  J.  Johnson,  for  a  certain  immoral  purpose,  to 
wit,  for  the  purpose  of  committing  the  crime  against 
nature  with  and  upon  her,  the  said  Belle  Schreiber,  other- 
wise known  as  Mrs.  J.  Johnson;  against  the  peace  and 
dignity  of  the  said  United  States,  and  contrary  to  the 
form  of  the  statute  of  the  same  in  such  case  made  and 
provided. 


United  States  Attorney. 
PETITION  FOR  WRIT  OF  ERROR. 


No. 


UNITED  STATES  OF  AMERICA 

vs. 
JOHN  DOE. 


J 


In  the  District 
"Court  of  the  Unit- 
ed States  for  the 
Northern  District 
of  Texas. 


John  Doe,  the  defendant,  in  the  above-numbered  and 
entitled  cause,  feeling  himself  aggrieved  by  the  verdict 

of  the  jury  returned  herein  on  the day  of 

.  .A.  D.   1915,   and  judgment  rendered  thereon  on  the 

day  of A.  D.  1915,  comes  by  Lilian  B. 

Aveilhe,  his  attorney,  and  petitions  the  Court  for  an  or- 
der allowing  the  defendant  to  prosecute  a  writ  of  error 


748  Federal  Criminal  Law  Procedure. 

to  the  Honorable  United  States  Circuit  Court  of  Appeals 
for  the  Fifth  Circuit  under  and  according  to  the  laws  01 
the  United  States  in  that  behalf  provided,  and  your  peti- 
tioner will  ever  pray. 

Lilian  B.  Aveilhe, 
Attorney  for  Defendant. 


ORDER  ALLOWING  WRIT  OF  ERROR. 

No. 


UNITED  STATES  OF  AMERICA 

vs. 
JOHN  DOE. 


In  the  United 
States  District 
Court  for  the  North- 
ern District  of  Tex- 
as, at  Dallas. 


This  the  15th  day  of  April,  1915,  came  the  defendant, 
by  his  attorney,  and  filed  herein  and  presented  to  the 
Court  his  petition  praying  for  the  allowance  of  a  writ 
of  error  intended  to  be  urged  by  him,  praying  also  that 
a  transcript  of  the  records  and  proceedings  and  papers 
upon  which  the  judgment  herein  was  rendered,  duly  au- 
thenticated, may  be  sent  to  the  United  States  Circuit 
Court  of  Appeals  for  the  Fifth  Judicial  Circuit,  and  that 
such  other  and  further  proceedings  may  be  had  as  may 
be  proper  in  the  premises. 

On  consideration  whereof  the  Court  does  allow  the 
writ  of  error  upon  the  defendant  giving  bond  according 
to  law  in  the  sum  of dollars,  which  shall  oper- 
ate as  a  supersedeas  bond. 


United  States  District  Judge 


3' 


WRIT  OF  ERROR. 

The  United  States  Circuit  Court  of  Appeals  for  the  Fifth 

Circuit. 
The  United  States  of  America 
Fifth  Judicial  Circuit 


Form  of  Indictment  749 

The  President  of  the.  United  States,  to  the  Honorable 
Judge  of  the  District  Court  of  the  United  States  for 
the  Northern  District  of  Texas,  Greeting: 
Because  in  the  record  and  proceedings,  as  also  in  the 
rendition  of  the  judgment,  of  a  plea  which  is  in  the  said 
District  Court,  before  you,  between  the  United  States  of 
America,  plaintiffs,  and  John  Doe,  defendant,  a  manifest 
error  hath  happened,  to  the  great  damage  of  the  said 
John  Doe,  defendant,  as  by  his  complaint  appears,  we 
being  willing  that  error,  if  any  hath  been,  should  be  duly 
corrected,  and  full  and  complete  justice  done  to  the  par- 
ties aforesaid,  in  this  behalf,  do  command  you,  if  judg- 
ment be  therein  given,  that  then,  under  your  seal,  dis 
tinctly  and  openly,  you  send  the  record  and  proceedings 
aforesaid,  with  all  concerning  the  same,  to  the  United 
States  Circuit  Court  of  Appeals  for  the  Fifth  Circuit, 
together  with  this  writ,  so  that  you  have  the  same  at  New 
Orleans  in  said  circuit  within  thirty  days  from  the  date 
hereof,  in  the  said  Circuit  Court  of  Appeals,  to  be  then 
and  there  held,  that  the  record  and  proceedings  afore- 
said, being  inspected,  the  said  Circuit  Court  of  Appeals 
may  cause  further  to  be  done  therein  to  correct  that  er- 
ror, what  of  right,  and  according  to  the  laws  and  cus- 
toms of  the  United  States  should  be  done. 


United  States  District  Judge. 
WITNESS  THE  HONORABLE 


Judge  of  the  District  Court  of  the 

United  States,  this  the  

day   of    ,    1915,    and 

the  year  of  the  in- 
dependence of  the  United 
States  of  America. 


ATTEST: 

Clerk. 


750  Federal  Criminal  Law  Procedure. 

CITATION  • 

The  United  States  Circuit  Court  of  Appeals  for  the  Fifth 

Circuit. 
The  United  States  of  America 
Fifth  Judicial  Circuit 
To  the  United  States  of  America,  Greeting: 

You  are  hereby  cited  and  admonished  to  be  and  ap- 
pear at  session  of  the  United  States  Circuit  of  Ap- 
peals for  the  Fifth  Circuit  to  be  held  at  the  city  of  New 
Orleans  in  said  Circuit  on  the ....  day  of next  pur- 
suant to  a  writ  of  error  filed  in  the  Clerk's  office  of  the 
District  Court  of  the  United  States  for  the  Northern  Dis- 
trict of  Texas,  wherein  John  Doe  is  plaintiff  in  error  and 
you  are  the  defendants  in  error,  to  show  cause,  if  any 
there  be,  why  the  judgment  rendered  against  the  said 
plaintiff  in  error,  as  in  the  said  writ  of  error  mentioned, 
should  not  be  corrected,  and  why  speed  justice  should 
not  be  done  to  the  parties  in  that  behalf. 

WITNESS  THE  HONORABLE  EDWARD  M. 
WHITE,  CHIEF  JUSTICE  OF  THE  UNITED  STATES, 

this  the day  of in  the  year  of  our  Lord 

one  thousand  nine  hundred  and ,   and   of  the 

independence  of  the  United  States  of  America  the  One 
Hundred  and   

United  States  District  Judge, 
or 

Clerk  of  the  United  States  District  Court  of  the  Northern 

District   of  Texas. 

WRIT  OF  ERROR  BOND. 
No. 

UNITED  STATES  OF  AMERICA  1       In     the     District 

Court  of  the  United 
vs.  ,>  States  for  the  North- 

ern District  of  Tex- 
as. 


JOHN  DOE. 


Form  of  Indictment  751 

We,  John  Doe,  and  the  other  subscribers  hereto,  joint- 
ly and  severally,  acknowledge  ourselves  indebted  to  the 
United  States  of  America  in  the  sum  of  one  thousand 
dollars  lawful  money  of  the  United  States  of  America, 
to  be  levied  on  our  and  each  of  our  goods,  chattels,  lands 
and  tenements,  upon  this  condition: 

Whereas,  the  said  John  Doe,  has  sued  out  a  writ  of 
error  from  the  judgment  of  the  United  States  District 
Court  for  the  Northern  District  of  Texas,  in  Cause  No. 

in  said  Court,  wherein  the  United  States  of 

America  are  plaintiffs  and  John  Doe  is  defendant,  for 
a  review  of  the  judgment  in  the  United  States  Circuit 
Court  of  Appeals  for  the  Fifth  Circuit : 

Now,  if  the  said  John  Doe  shall  appear  and  surrender 
in  the  District  Court  of  the  United  States  for  the  North- 
ern District  of  Texas  on  and  after  the  filing  in  said  Dis- 
trict Court  of  the  mandate  of  the  United  States  Circuit 
Court  of  Appeals  for  the  Fifth  Circuit,  and  from  time  to 
time  thereafter  as  he  may  be  required  to  answer  any 
further  proceedings,  and  abide  by  and  perform  any  judg- 
ment or  order  which  may  be  had  or  rendered  therein  in 
this  case,  and  shall  abide  by  and  perforin  any  judgment 
or  order  which  may  be  rendered  in  said  United  States 
Circuit  Court  of  Appeals  for  the  Fifth  Circuit,  and  not 
depart  from  said  District  Court  without  leave  thereof, 
then  this  obligation  shall  be  void;  otherwise  to  remain  in 
full  force  and  virtue. 

WITNESS  our  hands  and  seals  on  this  the day 

of A.  D.  1915. 


Taken  and  approved  this  the 

day  of   A.  D.  1915,  be- 
fore me. 

United  States  District  Judge. 


752  Federal  Criminal  Law  Procedure. 

PRAECIPE  FOR  RECORD. 
UNITED  STATES  OF  AMERICA 


vs. 
JOHN  DOE. 
To  L.  C.  Maynard, 
Clerk. 


>- 


In  the  United  States 
District  Court  for  the 
Northern    District    of 
Texas,  at  Dallas. 


SIR:  Please  prepare  a  transcript  of  the  record  in  the 
case  of  United  States  vs.  John  Doe  and  include  therein 
the  following  papers:  Indictment;  defendant's  motion 
to  abate;  defendant's  motion  to  quash;  judgment;  sen- 
tence; defendant's  motion  for  a  new  trial;  defendant's 
amended  motion  in  arrest  cf  judgment;  bill  of  exceptions; 
charge  of  the  Court;  (if  the  Court  orders  the  same  sent 
up)  assignments  of  error;  petition  for  writ  of  error;  order 
allowing  writ  of  error  and  fixing  bail;  writ  of  error  bond; 
writ  of  error;  citation  in  error, 

Respectfully, 

Lilian  B.  Aveilhe, 
Attorney  for  the  Defendant. 


CRIMINAL    STATUTES. 

Complete  Penal  Code,  Together  with  an  Appendix, 
which  Contains  a  Reference  to  all  Laws  of  a  General 
Nature  in  force  on  December  1,  1909,  which  have  Penal 
Provisions,  and  which  are  not  Contained  in  the  1910 
Criminal  Code. 

EXPLANATIONS— All  criminal  statutes  were  re- 
vised and  collated  into  what  is  called  the  Revised  Stat- 
utes of  1878.  Between  that  time  and  1910  there  was,  of 
course,  much  important  criminal  legislation  and  the  1910 
Code,  therefore,  became  necessary.  That  cede,  however, "^ 
does  not  include  all  of  the  federal  criminal  statutes,  many 
still  remaining  alive  in  the  1878  revision.  There  are  also 
many  laws  having  criminal  provisions  which  are  not 
included  in  either  the  Code  or  the  Revised  Statutes. 

The  government  prepared,  at  its  printing  office,  in  1911, 
a  pamphlet  which  is  supposed  to  contain  all  of  the  crim- 
inal stautes  up  to  the  date  of  such  printing,  or  to  at  least 
point  where  such  statute  may  be  found.  In  order  that 
this  volume  may  be  as  complete  as  possible,  I  secured 
a  copy  of  this  government  publication,  and  have  includ- 
ed it  herein.  The  information  that  comes  under  the  head 
of  appendix  is  valuable  since  the  general  headings  thereof 
will  enable  one  to  trace  and  find  quickly  any  criminal 
provision,  which  is  not  included  in  the  1910  act.  The 
reference  is  to  the  1878  statutes  and  also  to  the  statutes- 
at-large. 

The  most  important  laws,  enacted  since  1910  are  to  be 
found  in  the  preceding  chapters.  While  the  1910  Code 
is  in  this  chapter,  the  most  important  laws  up  to  De- 
cember 1st,  1921,  will  be  found  in  this  volume.  With 
the  preceding  chapters  and  the  Penal  Code  which  fol- 
lows this  word  practically  every  criminal  statute  or  a 
reference  to  it,  will  be  found. 

For  additional  reference  books  I '  gladly  commend 
Federal  Statutes  Annotated,  U.  S.  Complied  Statutes  and 
Barnes  Federal  Code,  the  latter,  though  without  annota- 

(753) 

48 


754  Federal  Criminal  Law  Procedure. 

tions,  being  the  most  portable.  At  the  date  of  this  writing 
it  is  composed  of  an  original  edition  and  of  a  1921  sup- 
plement which,  however,  only  covers  the  years  1919  and 
1920,  and  does  not  embrace  any  of  the  legislation  of  1921. 

[Act  of  March  4,  1909;    35  Stat.,  1088.] 
An  Act  To  codify,  revise,  and  amend  the  penal  laws  of  the  United  States 

Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  as- 
sembled, That  the  penal  laws  of  the  United  States  be, 
and  they  hereby  are,  codified,  revised,  and  amended,  with 
title,  chapters,  headnotes,  and  sections,  entitled,  num- 
bered, and  to  read  as  follows: 


CRIMES 


CHAPTER   ONE. 

OFFENSES  AGAINST  THE  EXISTENCE  OF  THE  GOVERNMENT. 

§  1.  Treason. 

2.  Punishment  of  treason. 

3.  Misprision  of  treason. 

4.  Inciting  or  engaging  in  rebellion  or  insurrection. 

5.  Criminal  correspondence  with  foreign  governments. 

6.  Seditious  Conspiracy. 

7.  Recruiting  soldiers  or  sailors  to  serve  against  the  United  States. 

8.  Enlistment  to  serve  against  the  United  States. 


§  1.  Treason.  —  Whoever,  owing  allegiance  to  the 
United  States,  levies  war  against  them  or  adheres  to  their 
enemies,  giving  them  aid  and  comfort  within  the  United 
States  or  elsewhere,  is  guilty  of  treason.    (R.  S.,  s.  5331.) 


U.  S.  v.  Vilato,  2  Dall.,  370;  The 
Insurgents,  2  Dall.,  385;  Ex  Parte  Bol 
man  &  Swartout,  4  Cranch,  75;  U.  S.  v. 
Burr,  4  Cranch,  469;  Hanauer  v.  Doane, 
12  Wall.,  342;  Carlisle  v.  U.  S.,  16 
Wall.,  147;  Case  of  Fries,  Wharton  St. 
Tr.,  458,  610,  9  Fed.  Cas.,  826,  924; 
Shortridge  v.  Macon,  Chase,  136.  22 
Fed.  Cas.,  20;  U.  S.  v.  Burr,  1  Burr's 
Trial,  14,  16,  2  Burr's  Trial,  402,  405, 
417,  25  Fed.  Cas.,  2,  52,  55.  210;  U.  S. 
v.  Cathcart,  1  Bond,  556,  25  Fed.  Cas., 
344;  U.  S.  v.  Greathouse,  2  Ab.  C.  C. 
364,   26   Fed.   Cas.,   18;   U.   S.   v.  Hodges, 


Brun.  Col.  Cas.,  465,  26  Fed.  Cas.,  332, 
U.  S.  v.  Hoxie,  1  Paine,  265,  26  Fed. 
Cas.,  397;  U.  S.  v.  Mitchell,  2  Dall.,  348, 
26  Fed.  Cas.,  1277;  U.  S.  v.  Vigol,  2  Dall., 
346,  28  Fed.  Cas.,  376;  U.  S.  v.  Pryor,  3 
Wash.,  234,  27  Fed.  Cas.,  628;  Charges  to 
Grand  Jury,  2  Curt.,  630.  30  Fed.  Cas., 
1024;  4  Blatch.,  518,  30  Fed.  Cas.,  1032; 
5  Blatch.,  549,  30  Fed.  Cas.,  1034;  1  Bond. 
609,  30  Fed.  Cas.  1036;  1  Spr.,  602,  30 
Fed.  Cas.,  1039;  2  Spr.,  292,  30  Fed. 
Cas.,  1042;  1  story,  614,  30  Fed.  Cas. 
1046;  2  Wall.,  jr.,  134,  30  Fed.  Cas., 
1047;   2  Spr.  285,  30   Fed.   Cas.,   1049. 


§  2.  Punishment  of  treason. — Whoever  is  convicted 
of  treason  shall  suffer  death;  or,  at  the  discretion  of  the 
court,  shall  be  imprisoned  not  less  than  five  years  and 
fined  not  less  than  ten  thousand  dollars,  to  be  levied  on 
and  collected  out  of  any  or  all  of  his  property,  real  and 
personal  of  which  he  was  the  owner  at  the  time  of  com- 
mitting such  treason,  any  sale  or  conveyance  to  the  con- 
trary notwithstanding;  and  every  person  so  convicted  of 
treason  shall,  moreover,  be  incapable  of  holding  any 
office  under  the  United  States.     (R.  S.,  s.  5332.) 

Confiscation   Cases,   20  Wall.,   92;    Wal-       202;    Windsor    v.    McVeigh,    93    U.     S., 
lack    et    al.    v.    Van    Riswick,    92    V.    S.,       274. 

§  3.  Misprision  of  treason. — Whoever,  owing  alle- 
giance to  the  United  States  and  having  knowledge  of 

(755) 


756  Federal  Criminal  Law  Procedure. 

the  commission  of  any  treason  against  them,  conceals, 
and  does  not,  as  soon  as  may  be,  disclose  and  make  known 
the  same  to  the  President  or  to  some  judge  of  the  United 
States,  or  to  the  governor  or  to  some  judge  or  justice  of 
a  particular  State,  is  guilty  of  misprision  of  treason  and 
shall  be  imprisoned  not  more  than  seven  years  and  fined 
not  more  than  one  thousand  dollars.     (E.  S.,  s.  5333.) 

U.     S.     v.     Wiltberger,     5     Wheat,     97;         Fed.    Cas.,   270;    U.    S.    v.   Tract   of    Land, 
Confiscation      Cases,      1     Woods,     221,     6        1    Woods,    475,    28    Fed.    Cas.,    203. 

§  4.  Inciting  or  engaging  in  rebellion  or  insurrection. 
— Whoever  incites,  sets  on  foot,  assists,  or  engages  in 
any  rebellion  or  insurrection  against  the  authority  of  the 
United  States  or  the  laws  thereof,  or  gives  aid  or  comfort 
thereto,  shall  be  imprisoned  not  more  than  ten  years,  or 
fined  not  more  than  ten  thousand  dollars,  or  both;  and 
shall,  moreover,  be  incapable  of  holding  any  office  under 
the  United  States.     (R.  S.,  s.  5334.) 

§  5.  Criminal  correspondence  with  foreign  govern- 
ments.—Every  citizen  of  the  United  States,  whether 
actually  resident  or  abiding  within  the  same,  or  in  any 
place  subject  to  the  jurisdiction  thereof,  or  in  any  foreign 
country,  without  the  permission  or  authority  of  the  Gov- 
ernment, directly  or  indirectly,  commences  or  carries  on 
any  verbal  or  written  correspondence  or  intercourse  with 
any  foreign  government  or  any  officer  or  agent  thereof, 
with  an  intent  to  influence  the  measures  or  conduct  of 
any  foreign  government  or  of  any  officer  or  agent  there- 
of, in  relation  to  any  disputes  or  controversies  with  the 
United  States,  or  to  defeat  the  measures  of  the  Govern- 
ment of  the  United  States,  and  every  person,  being  a 
citizen  of  or  resident  within  the  United  States  or  in  any 
place  subject  to  the  jurisdiction  thereof,  and  not  duly 
authorized,  counsels,  advises,  or  assists  in  any  such  cor- 
respondence with  such  intent,  shall  be  fined  not  more 
than  five  thousand  dollars  and  imprisoned  not  more  than 
three  years;  but  nothing  in  this  section  shall  be  con- 
strued to  abridge  the  right  of  a  citizen  to  apply,  himself 
or  his  agent,  to  any  foreign  government  or  the  agents 
thereof  for  redress  of  any  injury  which  he  may  have  sus- 


Offenses  Against  Government.  757 

tainecl  from  such  government  or  any  of  its  agents  or  sub- 
jects.    (R.  S.,  s.  5335.) 

§  6.  Seditious  conspiracy. — If  two  or  more  persons  in 
any  State  or  Territory,  or  in  any  place  subject  to  the 
jurisdiction  of  the  United  States,  conspire  to  overthrow, 
put  down,  or  to  destroy  by  force  the  Government  of  the 
United  States,  or  to  levy  war  against  them,  or  to  oppose 
by  force  the  authority  thereof,  or  by  force  to  prevent, 
hinder,  or  delay  the  execution  of  any  law  of  the  United 
States,  or  by  force  to  seize,  take,  or  possess  any  property 
of  the  United  States  contrary  to  the  authority  thereof, 
they  shall  each  be  fined  not  more  than  five  thousand  dol- 
lars, or  imprisoned  not  more  than  six  years,  or  both.  (R. 
S.,  s.  5336.) 

Ex    parte    Lange,    18    Wall.,    163. 

§  7.  Recruiting  soldiers  or  sailors  to  serve  against  the 
United  States. — Whoever  recruits  soldiers  or  sailors  with- 
in the  United  States,  or  in  any  place  subject  to  the  juris- 
diction thereof,  to  engage  in  armed  hostility  against  the 
same,  or  opens  within  the  United  States,  or  in  any  place 
subject  to  the  jurisdiction  thereof,  a  recruiting  station 
for  the  enlistment  of  such  soldiers  or  sailors  to  serve  in 
any  manner  in  armed  hostility  against  the  United  States, 
shall  be  fined  not  more  than  one  thousand  dollars  and 
imprisoned  not  more  than  five  years.     (R.  S.,  s.  5337.) 

§  8.  Enlistment  to  serve  against  the  United  States. — 
Every  person  enlisted  or  engaged  within  the  United 
States  or  in  any  place  subject  to  the  jurisdiction  thereof, 
with  intent  to  serve  in  armed  hostility  against  the  United 
States,  shall  be  fined  one  hundred  dollars  and  imprisoned 
not  more  than  three  years.     (R.  S.,  s.  5338.) 


CHAPTER  TWO. 


OFFENSES  AGAINST  NEUTRALITY. 

§     9.  Accepting  a   foreign   commission. 

10.  Enlisting  in  foreign  service. 

11.  Arming  vessels  against  people  at  peace  with  the  United  States. 

12.  Augmenting  force  of  foreign  vessel  of  war. 

13.  Military  expeditions   against  people  at   peace   with  the  United 

States. 

14.  Enforcement  of  foregoing  provisions. 

15.  Compelling  foreign  vessels  to  depart. 

16.  Armed  vessels  to  give  bond  on  clearance. 

17.  Detention  by  collectors  of  customs. 

18.  Construction  of  this  chapter. 

§  9.  Accepting  a  foreign  commission. — Every  citizen 
of  the  United  States  who,  within  the  territory  or  juris- 
diction thereof,  accepts  and  exercises  a  commission  to 
serve  a  foreign  prince,  state,  colony,  district,  or  people, 
in  war,  by  land  or  by  sea,  against  any  prince,  state,  col- 
ony, district,  or  people,  with  whom  the  United  States  are 
at  peace,  shall  be  fined  not  more  than  two  thousand  dol- 
lars and  imprisoned  not  more  than  three  years.  (R.  S.  s. 
5281.) 

U.    S.   v.   Williams,    3    Cranch,    83;    Ker  of     the     Salvadorean     Refugees,     29     Am. 

v.    Illinois,     119    U.    S.,    436;    Wiborg    v.  L.    Rev.,    1;    The   Ambrose    Light,    5    Fed. 

U.    S.,     163    U.    S.,    632,    73    Fed.    Rep.,  Rep.,    408. 
159;   John   Bassett   Moore  upon  The   Case 

§  10.  Enlisting  in  foreign  service. — Whoever,  within 
the  territory  or  jurisdiction  of  the  United  States,  enlists, 
or  enters  himself,  or  hires  or  retains  another  person  to 
enlist  or  enter  himself,  or  to  go  beyond  the  limits  or  juris- 
diction of  the  United  States  with  intent  to  be  enlisted  or 
entered  in  the  service  of  any  foreign  prince,  state,  colony, 
district,  or  people,  as  a  soldier,  or  as  a  marine  or  seaman, 
on  board  of  any  vessel  of  war,  letter  of  marque,  or  priva- 
teer, shall  be  fined  not  more  than  one  thousand  dollars 
and  imprisoned  not  more  than  three  years.  (R.  S.  s. 
5282.) 

Chacon  v.   Bales  of   Cochineal,    1    Brock.,  Pitts..     L.     J..     194,     26     Fed.     Cas.,     293; 

478,     5     Fed.     Cas.,     390;     Stoughton     v.  U.     S.     v.     Kazinski,     2     Sprague,     7,     26 

Taylor,  2  Paine,  665,   13  Fed.  Cas.,  1179;  Fed.    Cas.,    682;    4    A.    G.    Op.,    336;    7 

Ex    parte     Needham,     Pet.     C.     C;     487.  A.    G.    Op.,    367. 
17    Fed.    Cas.,    1274,    U.    S.    v.    Hertz,    3 

(758) 


Offenses  Against  Neutrality, 


759 


§  11.  Arming  vessels  against  people  at  peace  with  the 
United  States. — Whoever,  within  the  territory  or  juris- 
diction of  the  United  States,  fits  out  and  arms,  or  at- 
tempts to  fit  out  and  arm,  or  procures  to  be  fitted  out  and 
armed,  or  knowingly  is  concerned  in  the  furnishing, 
fitting  out,  or  arming  of  any  vessel,  with  intent  that  such 
vessel  shall  be  employed  in  the  service  of  any  foreign 
prince  or  state,  or  of  any  colony,  district,  or  people,  to 
cruise  or  commit  hostilities  against  the  subjects,  citizens, 
or  property  of  any  foreign  prince  or  state,  or  of  any 
colony,  district,  or  people,  with  whom  the  United  States 
are  at  peace,  or  whoever  issues  or  delivers  a  commission 
within  the  territory  or  jurisdiction  of  the  United  States 
for  any  vessel,  to  the  intent  that  she  may  be  so  employed, 
shall  be  fined  not  more  than  ten  thousand  dollars  and 
imprisoned  not  more  than  three  years.  And  every  such 
vessel,  her  tackle,  apparel,  and  furniture,  together  with 
all  materials,  arms,  ammunition,  and  stores  which  may 
have  been  procured  for  the  building  and  equipment 
thereof,  shall  be  forfeited;  one-half  to  the  use  of  the  in- 
former and  the  other  half  to  the  use  of  the  United  States. 
(R.  S.  s.  5283.) 

U.  S.  v.  Guinet,  2  Dall.,  321;  Moodie 
v.  The  Alfred,  3  Dal!.,  307;  Gelston  v. 
Hoyt,  3  Wheat.,  246;  The  Estrella,  4 
Wheat.,  298;  La  Conception,  6  Wheat., 
235;  The  Santissima  Trinidad,  7  Wheat., 
283;  The  Gran  Para,  7  Wheat.,  471; 
The  Santa  Maria,  7  Wheat.,  490;  The 
Arrogante  Barcelones,  7  Wheat.,  496; 
The  Monta  Allegre,  7  Wheat.,  520;  U. 
S.  v.  Reyburn,  6  Pet.,  352;  U.  S.  v. 
Quincy,  6  Pet.,  445;  The  Bermuda,  3 
Wall.,  551:  U.  S.  v.  Weed,  72  U.  S. 
62;  The  Watchful,  7i  U.  S.,  91;  The 
Three  Friends,  166  U.  S.,  1,  52,  78  Fed. 
Rep.,  175.  The  Chapman,  4  Sawyer. 
501,  S  Fed.  Cas.,  471;  The  Florida,  4 
Ben.,  452,  9  Fed.  Cas.,  321;  Tuando  v. 
Taylor,  2  Paine,  652,  13  Fed.  Cas.,  1179; 
The  Meteor,  1  Am.  L.  Rev.,  401,  17  Fed. 
Cas.,  178;  Moodie  v.  The  Brothers,  Bee, 
76,    17   Fed.   Cas.,   653;    Sawyer  v.    Steele, 

§  12.  Augmenting  force  of  foreign  vessel  of  war. — 
Whoever,  within  the  territory  or  jurisdiction  of  the 
United  States,  increases  or  augments,  or  procures  to  be 
increased  or  augmented,  or  knowingly  is  concerned  in 
increasing  or  augmenting,  the  force  of  any  ship  of  war, 
cruiser,  or  other  armed  vessel  which,  at  the  time  of  her 
arrival  within  the  United  States,  was  a  ship  of  war,  or 
cruiser  or  armed  vessel,  in  the  service  of  any  foreign 


3  Wash.,  464,  21  Fed.  Cas.,  583;  U. 
S.  v.  Skinner,  1  Brun.  Col.  Cas.,  446; 
2  Wheeler's  Crim.  Cases,  232,  27  Fed. 
Cas.,  1123;  U.  S.  v.  The  Mary  Hogan, 
18  Fed.  Rep.,  529;  U.  S.  v.  Two 
Hundred  and  Fourteen  Boxes.  20  Fed. 
Rep.,  50;  Stannick  v.  The  Friendship, 
Bee,  40,  22  Fed.  Cas.,  1056;  The  City 
of  Mexico,  24  Fed.  Rep.  33,  25  Fed. 
Rep.,  925;  The  City  of  Mexico,  28 
Fed.  Rep.,  148,  32  Fed.  Rep.,  105; 
The  Carondolet,  37  Fed.  Rep.,  799; 
The  Conserva,  38  Fed.  Rep.,  431;  U. 
S.  v.  The  Resolute,  40  Fed.  Rep..  543: 
U.  S.  v.  The  Robert  and  Minnie,  47 
Fed.  Rep.,  84;  U.  S.  v.  Trumbull.  48 
Fed.  Rep.,  99;  The  Itata,  56  Fed.  Rep.. 
505.  49  Fed.  Rep..  646:  The  Laurada. 
85  Fed.  Rep.,  760,  The  Huascar,  3  Whar- 
ton's   Dig.,    474. 


760 


Federal  Criminal  Law  Procedure. 


prince  or  state,  or  of  any  colony,  district,  or  people,  or  be- 
longing to  the  subjects  or  citizens  of  any  such  prince  or 
state,  colony,  district,  or  people,  the  same  being  at  war 
with  any  foreign  prince  or  state,  or  of  any  colony,  district, 
or  people,  with  whom  the  United  States  are  at  peace,  by 
adding  to  the  number  of  the  guns  of  such  vessel,  or  by 
changing  those  on  board  of  her  for  guns  of  a  larger  cali- 
ber, or  by  adding  thereto  any  equipment  solely  applica- 
ble to  war,  shall  be  fined  not  more  than  one  thousand  dol- 
lars and  imprisoned  not  more  than  one  year.  (R.  S.  s. 
5285.) 

The  Alerta  v.  Moran,  9  Cranch,  359; 
U.  S.  v.  Grassin,  3  Wash.,  65,  26  Fed. 
Cas.,     10. 

§  13.  Military  expeditions  against  people  at  peace 
with  the  United  States. — Whoever,  within  the  territory 
or  jurisdiction  of  the  United  States,  begins,  or  sets  on 
foot,  or  provides_or  prepares  the  means  for,  any  military 
expedition  or  enterprise,  to  be  carried  on  from  thence 
against  the  territory  or  dominions  of  any  foreign  prince 
or  state,  or  of  any  colony,  district,  or  people,  with  whom 
the  United  States  are  at  peace,  shall  be  fined  not  more 
than  three  thousand  dollars  and  imprisoned  not  more 
than  three  years.     (R.  S.  s.  5286.) 

U.  S.  v.  Pirates,  5  Wheat.,  184;  U. 
S.  v.  Hallock,  154  U.  S.,  537;  Duvall  v. 
U.  S.,  154  U.  S.,  548;  U.  S.  v.  Wiborg, 
163  U.  S.,  632;  The  Three  Friends,  166 
U.  S.,  1,  78;  The  Chapman,  4  Sawyer, 
501,  5  Fed.  Cas.,  471;  Ex  parte  Needham, 
1  Pet.  C  C,  487,  17  Fed.  Cas.,  1275; 
U.  S.  v.  Lumsden,  1  Bond,  5,  26  Fed. 
Cas..  1012;  Charges  to  Grand  Jury,  5 
Blatch.,  556,  30  Fed.  Cas.,  1017;"  2  Mc- 
Lean, 1,  30  Fed.  Cas.,  1018;  5  McLean, 
249,  30  Fed.  Cas.,  1020;  5  McLean,  306, 
30  Fed.  Cas.,  1021;  4  Wkly.  L.  Gaz., 
214,  30  Fed.  Cas.,  1023;  2  Curt.,  630, 
30  Fed.  Cas.,  1024;  U.  S.  v.  Rand,  17 
Fed.  Rep.,  142;  City  of  Mexico,  32  Fed. 
Rep.,   105;  The  Cardondelet,  37  Fed.  Rep., 

§  14.  Enforcement  of  foreign  provisions. — The  dis- 
trict courts  shall  take  cognizance  of  all  complaints,  by 
whomsoever  instituted,  in  cases  of  captures  made  within 
the  waters  of  the  United  States,  or  within  a  marine 
league  of  the  coasts  or  shores  thereof.  In  every  case  in 
which  a  vessel  is  fitted  out  and  armed,  or  attempted  to  be 
fitted  out  and  armed  or  in  which  the  force  of  any  vessel 
of  war,  cruiser,  or  other  armed  vessel  is  increased  or 
augmented,  or  in  which  any  military  expedition  or  enter- 


799;  U.  S.  v.  The  Resolute,  40  Fed 
Rep.,  543;  U.  S.  v.  The  Robert  and  Min 
nie.  47  Fed.  Rep.,  84  U.  S.  v.  Trumbull 
48  Fed.  Rep.,  99;  The  Itata,  46  Fed 
Rep.,  646;  U.  S.  v.  Ybanez.  53  Fed 
Rep.,  536;  Hendrick  v.  Gonzales,  67 
Fed.  Rep.,  351;  U.  S.  v.  Pena,  69  Fed 
Rep.,  983;  U.  S.  v.  Hughes,  70  Fed 
Rep.  972,  75  Fed.  Rep.,  267;  U.  S.  v 
O'Brien,  75  Fed.  Rep.,  900;  U.  S.  v 
Hart,  78  Fed.  Rep.,  868,  74  Fed.  Rep. 
724;  U.  S.  v.  Nunez.  82  Fed.  Rep.  599 
Hart  v.  U.  S..  84  Fed.  Rep.,  799;  U 
S.  v.  Murphy,  84  Fed.  Rep.,  609.  The 
Madagascar  Expedition,  29  Am.  L.  Rev., 
539. 


Offenses  Against  Neutrality.  761 

prise  is  begun  or  set  on  foot,  contrary  to  the  provisions 
and  prohibitions  of  this  chapter;  and  in  every  case  of 
the  capture  of  a  vessel  within  the  jurisdiction  or  protec- 
tion of  the  United  States  as  before  defined ;  and  in  every 
case  in  which  any  process  issuing  out  of  any  court  of 
the  United  States  is  disobeyed  or  resisted  by  any  person 
having  the  custody  of  any  vessel  of  war,  cruiser,  or 
other  armed  vessel  of  any  foreign  prince  or  state,  or  of 
any  colony,  district,  or  people,  or  of  any  subjects  or  citi- 
zens of  any  foreign  prince  or  state,  or  of  any  colony,  dis- 
trict, or  people,  it  shall  be  lawful  for  the-  President,  or 
such  other  person  as  he  shall  have  empowered  for  that 
purpose,  to  employ  such  part  of  the  land  or  naval  forces 
of  the  United  States,  or  the  militia  thereof,  for  the  pur- 
pose of  taking  possession  of  and  detaining  any  such  ves- 
sel, with  her  prizes,  if  any,  in  order  to  enforce  the  exe- 
cution of  the  prohibitions  and  penalties  of  this  chapter, 
and  the  restoring  of  such  prizes  in  the  cases  in  which 
restoration  shall  be  adjudged;  and  also  for  the  purpose 
of  preventing  the  carrying  on  of  any  such  expedition  or 
enterprise  from  the  territory  or  jurisdiction  of  the  Unit- 
ed States  against  the  territory  or  dominion  of  any  for- 
eign prince  or  state,  or  of  any  colony,  district,  or  people 
with  whom  the  United  States  are  at  peace.  (R.  S.  s. 
5287.) 

Stoughton    v.    Dimick,    3    Blatch.,    356; 
29    Vt.,    535,    23    Fed.    Cas.,    77. 

§  15.  Compelling  foreign  vessels,  to  depart. — It  shall 
be  lawful  for  the  President,  or  such  person  as  he  shall 
empower  for  that  purpose,  to  employ  such  part  of  the 
land  or  naval  forces  of  the  United  States,  or  of  the  mili- 
tia thereof,  as  shall  be  necessary  to  compel  any  foreign 
vessel  to  depart  the  United  States  in  all  cases  in  which, 
by  the  laws  of  nations  or  the  treaties  of  the  United 
States,  she  ought  not  to  remain  within  the  United  States. 
(R.  S.  s.  5288.) 

§  16.  Armed  vessels  to  give  bond  on  clearance. — 
The  owners  or  consignees  of  every  armed  vessel  sailing 
out  of  the  ports  of,  or  under  the  jurisdiction  of,  the  Unit- 
ed States,  belonging  wholly  or  in  part  to  citizens  thereof, 
shall,  before  clearing  out  the  same,  give  bond  to  the  Unit- 
ed States,  with  sufficient  sureties,  in  double  the  amount 
of  the  value  of  the  vessel  and  cargo  on  board,  including 


762  Federal  Criminal  Law  Procedure. 

her  armament,  conditioned  that  the  vessel  shall  not  be 
employed  by  such  owners  to  cruise  or  commit  hostilities 
against  the  subjects,  citizens,  or  property  of  any  foreign 
prince  or  state,  or  of  any  colony,  district,  or  people  with 
whom  the  United  States  are  at  peace.     (R.  S.  s.  5289.) 

U.  S.  v.  Quincy,  6  Pet.,  445;  U.  S. 
v.  Quitman,  2  Am.  L.  Rev.,  645,  27  Fed. 
Cas.,    680. 

§  17.  Detention  by  collector  of  customs. — The  several 
collectors  of  the  customs  shall  detain  any  vessel  mani- 
festly built  for  warlike  purposes,  and  about  to  depart 
the  United  States,  or  any  place  subject  to  the  jurisdic- 
tion thereof,  the  cargo  of  which  principally  consists  of 
arms  and  munitions  of  war,  when  the  number  of  men 
shipped  on  board,  or  other  circumstances,  render  it  prob- 
able that  such  vessel  is  intended  to  be  employed  by  the 
owners  to  cruise  or  commit  hostilities  upon  the  subjects, 
citizens,  or  property  of  any  foreign  prince  or  state,  or  of 
any  colony,  district,  or  people  with  whom  the  United 
States  are  at  peace,  until  the  decision  of  the  President 
is  had  thereon,  or  until  the  owner  gives  such  bond  and 
security  as  is  required  of  the  owners  of  armed  vessels  by 
the  preceding  section.       (R.  S.,  s.  5290.) 

Hendricks  v.  Gonzales,  67  Fed.  Rep., 
659. 

§  18.  Construction  of  this  chapter. — The  provisions 
of  this  chapter  shall  not  be  construed  to  extend  to  any 
subject  or  citizen  of  any  foreign  prince,  state,  colony,  dis- 
trict, or  people  who  is  transiently  within  the  United  States 
and  enlists  or  enters  himself  on  board  of  any  vessel  of 
war,  letter  of  marque,  or  privateer,  which  at  the  time  of 
its  arrival  within  the  United  States  was  fitted  and  equip- 
ped as  such,  or  hires  or  retains  another  subject  or  citi- 
zen of  the  same  foreign  prince,  state,  colony,  district,  or 
people  who  is  transiently  within  the  United  States  to  en- 
list or  enter  himself  to  serve  such  foreign  prince,  state,  col- 
ony, district,  or  people  on  board  such  vessel  of  war,  let- 
ter of  marque,  or  privateer,  if  the  United  States  shall 
then  be  at  peace  with  such  foreign  prince,  state,  colony, 
district,  or  people.  Nor  shall  they  be  construed  to  pre- 
vent the  prosecution  or  punishment  of  treason,  or  of 
anv  piracy  defined  by  the  laws  of  the  United  States.  (R. 
S.,  s.  5291.) 


CHAPTER  THREE. 


OFFENSES    AGAINST    THE    ELECTIVE    FRANCHISE    AND    CIVIL 

RIGHTS  OF  CITIZENS. 


19.  Conspiracy    to    injure,    etc.,    citizens    in    the    exercise    of    civil 

rights. 

20.  Depriving  persons  of  civil  rights  under  color  of  State  laws. 

21.  Conspiring  to  prevent  officer  from  performing  duties. 

22.  Unlawful  presence  of  troops  at  elections. 

23.  Intimidation  of  voters  by  officers,  etc.,  of  Army  or  Navy. 

24.  Officers  of  Army  or  Navy  prescribing  qualifications   of  voters. 

25.  Officers,    etc.,    of    Army    or    Navy    interfering    with    officers    of 

election,  etc. 

26.  Persons    disqualified    from   holding   office;     when    soldiers,   etc., 

may  vote. 


§  19.  Conspiracy  to  injure,  etc.,  citizens  in  the  exer- 
cise of  civil  rights. — If  two  or  more  persons  conspire 
to  injure,  oppress,  threaten,  or  intimidate  any  citizen  in 
the  free  exercise  or  enjoyment  of  any  right  or  privilege 
secured  to  him  by  the  Constitution  or  laws  of  the  United 
States,  or  because  of  his  having  so  exercised  the  same, 
or  if  two  or  more  persons  go  in  disguise  on  the  high- 
way, or  on  the  premises  of  another,  with  intent  to  pre- 
vent or  hinder  his  free  exercise  or  enjoyment  of  any 
right  or  privilege  so  secured,  they  shall  be  fined  not  more 
than  five  thousand  dollars  and  imprisoned  not  more  than 
ten  years,  and  shall,  moreover,  be  thereafter  ineligible 
to  any  office,  or  place  of  honor,  profit,  or  trust  created 
by  the  Constitution  or  laws  of  the  United  States.  (R.  S., 
s.  5508.) 


U.  S.  v.  Reese,  92  U.  S.,  214;  U.  S. 
v.  Cruikshank  et  al.,  92  U.  S.  542,  1 
Woods,  308,  25  Fed.  Cas.,  707;  Strau- 
der  v.  W.  Va.,  100  U.  S.,  303;  Va.  v. 
Reeves,  100  U.  S.,  313;  Ex  parte 
Virginia,  100  U.  S.,  339;  Ex  parte  Sie- 
bold,  100  U.  S.,  371;  Ex  parte  Clark, 
100  U.  S.,  399;  Neal  v.  Delaware.  103 
U.  S.,  370;  U.  S.  v.  Harris,  106  U.  S., 
629;  Civil  Rights  Cases,  109  U.  S.,  17; 
Ex  parte  Yarbrough,  110  U.  S.,  651;  U. 
S.  v.  Waddell,  16  Fed.  Rep.,  221,  112 
U.  S.,  76;  Baldwin  v.  Frank,  120  U.  S., 
678;  In  re  Coy,  127  U.  S..  731;  In 
re  Neagle.  135  U.  S.,  1;  In  re  Lan- 
caster, 137  U.  S.,  393;  Logan  v.  U.  S., 
144  U.  S.,  263;  Brown  v.  U.  S.,  150  U.  S., 
93;  In  re  Quarles,  158  U.  S.,  532;  Motes 
v.    U.     S.,    178    U.    S.,    458;     Hodges    v. 


U.  S..  203  U.  S..  1;  Rakes  v.  U.  S., 
212  U.  S.,  55;  Slaughter  House  Case, 
1  Woods,  21,  15  Fed.  Cas.,  649,  16  Wall.. 
36;  Seeley  v.  Knox,  2  Woods,  368,  21 
Fed.  Cas.,  1014;  U.  S.  v.  Butler,  1 
Hughes,  457,  25  Fed.  Cas.,  213;  U.  S. 
v.  Butler,  4  Hughes,  512,  25  Fed.  Cas.. 
226  U.  S.  v.  Degrieff,  16  Blatch.,  20, 
25  Fed.  Cas.,  799;  U.  S.  v.  Mitchel,  1 
Hughes,  439;  26  Fed.  Cas.,  1283;  Le 
Grand  v.  U.  S.,  12  Fed.  Rep..  577;  In 
re  Baldwin,  27  Fed.  Rep.,  187;  U.  S. 
v.  Lancaster,  44  Fed.  Rep..  885;  U.  S. 
v.  Sanges,  48  Fed.  Rep.,  78;  U.  S.  v. 
Patrick,  53  Fed.  Rep.,  356;  U.  S.  v.  Pat- 
rick, 54  Fed.  Rep.,  338;  Haynes  v.  U. 
S.,  101  Fed.  Rep.,  817;  U.  S.  v.  Davis, 
103  Fed.  Rep..  457;  Mullen  v.  U.  S.,  106 
Fed.  Rep.,  892;   Davis  v.  U.  S.,  107   Fed. 


(763) 


764  Federal  Criminal  Law  Procedure. 

Rep.,  753:  Karem  v.  U.  S.,  121   Fed.  Rep.,  254;  U.  S.  v.   Moore,   129  Fed.  Rep.,  630; 

250;     Morris    v.    U.     S.,     125     Fed.    Rep.,  U.    S.     v.    Powell,    151     Fed.    Rep.,     648; 

322;    McKenna   v.    U.    S.,    127    Fed.    Rep.,  Smith   v.    U.    S.,    157    Fed.    Rep.,    721;    U. 

S8;    U.     S.   v.   Eberhart,     127    Fed.     Rep.,  S.    v.    Mason,   213    U.    S.,    115. 

§  20.  Depriving  persons  of  civil  rights  under  color 
of  State  law. — Whoever,  under  color  of  any  law,  statute, 
ordinance,  regulation,  or  custom,  wilfully  subjects,  or 
causes  to  be  subjected,  any  inhabitant  of  any  State,  Ter- 
ritory, or  District  to  the  deprivation  of  any  rights,  priv- 
ileges, or  immunities  secured  or  protected  by  the  Con- 
stitution and  laws  of  the  United  States,  or  to  different 
punishments,  pains,  or  penalties,  on  account  of  such  in- 
habitant being  an  alien,  or  by  reason  of  his  color,  or 
race,  than  are  prescribed  for  the  punishment  of  citizens, 
shall  be  fined  not  more  than  one  thousand  dollars,  or 
imprisoned  not  more  than  one  year,  or  both.     (R.  S.,  s. 

Civil  Rights  Cases,  109  U.  S.,  16;  U.  481;  U.  S. -v.  Buntin,  10  Fed.  Rep.,  730; 
S.  v.  Blackburn,  8  Chi.  L.  N.,  26,  24  he  Grand  v.  U.  S.,  12  Fed.  Rep.,  577; 
Fed.  Cas.,   1158;   Re  Parrott,    1   Fed.  Rep.,        U.   S.,  v.   Washington,  20   Fed.   Rep.,   630. 

5510.) 

§  21.  Conspiracy  to  prevent  person  from  holding  of- 
fice or  officer  from  performing  duty  under  United  States, 
etc. — If  two  or  more  persons  in  any  State,  Territory,  or 
District  conspire  to  prevent,  by  force,  intimidation,  or 
threat,  any  person  from  accepting  or  holding  any  office, 
trust,  or  place  of  confidence  under  the  United  States,  or 
from  discharging  any  duties  thereof;  or  to  induce  by 
like  means  any  officer  of  the  United  States  to  leave  any 
State,  Territory,  District,  or  place,  where  his  duties  as 
an  officer  are  required  to  be  performed,  or  to  injure  him 
in  his  person  or  property  on  account  of  his  lawful  dis- 
charge of  the  duties  of  his  office,  or  while  engaged  in 
the  lawful  discharge  thereof,  or  to  injure  his  property 
so  as  to  molest,  interrupt,  hinder,  or  impede  him  in  the 
discharge  of  his  official  duties,  each  of  such  persons  shall 
be  fined  not  more  than  five  thouand  dollars,  or  imprison- 
ed not  more  than  six  years,  or  both.    (R.  S.,  s.  5518.) 

Clune  v.   U.    S.,   159   U.    S.,    590. 
U.   S.  v.  Johnson,   2   Fed.   Rep.,  682. 

§  22.  Unlawful  presence  of  troops  at  elections. — 
Every  officer  of  the  Army  or  Navy,  or  other  person  in 
the  civil,  military,  or  naval  service  of  the  United  States, 
who  orders,  brings,  keeps,  or  has  under  his  authority  or 
control  any  troops  or  armed  men  at  any  place  where  a 


Offenses  Against  Rights  of  Citizens.  765 

general  or  special  election  is  held  in  any  State,  unless 
such  force  be  necessary  to  repel  armed  enemies  of  the 
United  States,  shall  be  fined  not  more  than  five  thousand 
dollars  and  imprisoned  not  more  than  five  years.  (R.  S., 
s.  5528.) 

§  23.  Intimidation  of  voters  by  officers,  etc.,  of  Army 
and  Navy. — Every  officer  or  other  person  in  the  military 
or  naval  service  of  the  United  States  who,  by  force, 
threat,  intimidation,  order,  advice,  or  otherwise,  pre- 
vents or  attempts  to  prevent,  any  qualified  voter  of  any 
State  from  freely  exercising  the  right  of  suffrage  at  any 
general  or  special  election  in  such  State  shall  be  fined 
not  more  than  five  thousand  dollars  and  imprisoned  not 
more  than  five  years.    (R.  S.,  s.  5529.) 

§  24.  Officers  of  Army  or  Navy  prescribing  qualifica- 
tions of  voters. — Every  officer  of  the  Army  or  Navv  who 
prescribes  or  fixes,  or  attempts  to  prescribe  or  fix,  wheth- 
er by  proclamation,  order,  or  otherwise,  the  qualifica- 
tions of  voters  at  any  election  in  any  State  shall  be  pun- 
ished as  provided  in  the  preceding  section.  (R.  S.,  s. 
5530.) 

§  25.  Officers,  etc.,  of  Army  or  Navy  interfering  with 
officers  of  election,  etc. — Every  officer  or  other  person  in 
the  military  or  naval  service  of  the  United  States  who, 
by  force,  threat,  intimidation,  order,  or  otherwise,  com- 
pels, or  attempts  to  compel,  any  officer  holding  an  elec- 
tion in  any  State  to  receive  a  vote  from  a  person  not 
legally  qualified  to  vote,  or  who  imposes,  or  attempts 
to  impose,  any  regulations  for  conducting  any  general 
or  special  election  in  a  State  different  from  those  pre- 
scribed by  law,  or  who  interferes  in  any  manner  with  any 
officer  of  an  election  in  the  discharge  of  his  duty,  shall 
be  punished  as  provided  in  section  twenty-three.  (R.  S., 
s.  5531.) 

§  26.  Persons  disqualified  from  holding  office;  when 
soldiers,  etc.,  may  vote. — Every  person  convicted  of  any 
offense  defined  in  the  four  preceding  sections  shall,  in 
addition  to  the  punishment  therein  prescribed,  be  disquali- 
fied from  holding  any  office  of  honor,  profit,   or  trust 


766  Federal  Criminal  Law  Procedure. 

under  the  United  States;  but  nothing  therein  shall  be 
construed  to  prevent  any  officer,  soldier,  sailor,  or  ma- 
rine from  exercising  the  right  of  suffrage  in  any  elec- 
tion district  to  which  he  may  belong,  if  otherwise  quali- 
fied according  to  the  laws  of  the  State  in  which  he  offers 
to  vote.      (R.  S.,  5532.) 


CHAPTEE   FOUR. 

OFFENSES  AGAINST  THE  OPERATIONS  OF  THE 
GOVERNMENT. 

§  27.     Forgery  of  letters  patent. 

28.  Forging  bids,  public  records,  etc. 

29.  Forging  deeds,  powers  of  attorney,  etc. 

30.  Having    forged    papers    in   possession. 

31.  False  acknowledgments. 

32.  Falsely  pretending  to  be  United  States  officer. 

33.  False  personation  of  holder  of  public  stock. 

34.  False  demand  on  fraudulent  power  of  attorney. 

35.  Making   or   presenting  false   claims. 

36.  Embezzling  arms,  stores,  etc. 

37.  Conspiracy   to  commit   offense   against   the    United    States;     all 

parties  liable  for  acts  of  one. 

38.  Delaying  or  defrauding  captor  or  claimant,  etc.,  of  prize  prop- 

erty. 

39.  Bribery  of  United  States  officer. 

40.  Unlawfully  taking  or  using  papers  relating  to  claims. 

41  Persons  interested    not  to  act  as  agents  of   the  Government. 

42.  Enticing  desertions  from  the   military  or  naval   service. 

43.  Enticing  away  workmen. 

44.  Injuries  to  fortfications,  harbor  defenses,  etc. 

45.  Unlawfully  entering  upon   military  reservation,   fort,  etc. 

46.  Robbery  or  larceny  of  person  property  of  the  United  Stats. 

47.  Embezzling,   stealing,  etc.,  public  property. 

48.  Receivers,  etc.,  of  stolen  public  property. 

49.  Timber  depredations  on  public  lands. 

50.  Timber,  etc.,  depredations  on  Indian  and  other  reservations. 

51.  Boxing,  etc.,  timber  on  public  lands  for  turpentine,  etc. 

52.  Setting  fire  to  timber  on  public  lands. 

53.  Failing  to  extinguish  fires. 

54.  Fines  to  be  paid  into  school  funds. 

55.  Trespassing  on  Bull  Run  National  Forest,  Oregon. 

56.  Breaking   fence    or    gate    inclosing    reserved    lands,    or    driving 

or  permitting  live  stock  to  enter  upon. 

57.  Injuring  or  removing  posts  or  momuments. 

58.  Interrupting  surveys. 

59.  Agreement  to  prevent  bids  at  sale  of  lands. 

60.  Injuries  to  United   States  telegraph,  etc.,  lines. 

61.  Counterfeiting  weather  forecast. 

62.  Interfering  with  employees  of  Bureau  of  Animal  Industry. 

63.  Forgery  of  certificate  of  entry. 

64.  Concealment  or  destruction  of  invoices,  etc. 

(767) 


768  Federal  Criminal  Law  Procedure. 

65.  Resisting  revenue  officer;     rescuing  or  destroying  seized  prop- 

erty, etc. 

66.  Falsely  assuming  to  be  a  revenue  officer. 

67.  Offering  presents  to  revenue  officer. 

68.  Admitting  merchandise  to  entry  for  less  than  legal  duty. 

69.  Securing  entry  of  merchandise  by  false  samples,  etc. 

70.  False  certification  by  consular  officer. 

71.  Taking   seized   property   from   custody   of   revenue   officer. 

72.  Forging  or  altering  ship's  papers  or   custom-house   documents. 

73.  Forging  military  bounty-land  warrants,   etc. 

74.  Forging,  etc.,   certificate  of  citizenship. 

75.  Engraving,   etc.,   plate   for   printing,    or   photographing,   selling, 

or  bringing  into  United  States,  etc.,  certificate  of  citizenship. 

76.  False  personation,   etc.,   in   procuring  naturalization. 

77.  Using   false    certificate    of    citizenship,    or    denying    citizenship, 

etc. 

78.  Using  false  certificate,  etc.,  as  evidence  of  right  to  vote,  etc. 

79.  Falsely  claiming  citizenship. 

80.  Taking  false   oath   in  naturalization   proceedings. 

81.  Provisions  applicable  to  all  courts  of  naturalization. 

82.  Shanghaiing  and   falsely  inducing  person   intoxicated  to  go  on 

vessel  prohibited. 

83.  Corporations,   etc.,   not   to   contribute   money   for   political   elec- 

tions, etc. 

84.  Hunting   birds    or   taking   their   eggs    from    breeding   grounds, 

prohibited. 

§  27.  Forgery  of  letters  patent.— Whoever  shall  false- 
ly make  forge,  counterfeit,  or  alter  any  letters  patent 
granted  or  purported  to  have  been  granted  by  the  Presi- 
dent of  the  United  States;  or  whoever  shall  pass,  utter, 
or  publish,  or  attempt  to  pass,  utter,  or  publish  as  gen- 
uine, any  such  forged,  counterfeited,  or  falsely  altered 
letters  patent,  knowing  the  same  to  be  forged,  counter- 
feited, or  falsely  altered,  shall  be  fined  not  more  than  five 
thousand  dollars  and  imprisoned  not  more  than  ten 
years.     (R.  S.,  s.  5416.) 

U.     S.    v.    Irwin,     5     McLean,     178,    26 
Fed.    Cas.,   544. 

§  28.  Forging  bond,  bid,  public  record,  etc. — Who- 
ever shall  falsely  make,  alter,  forge,  or  counterfeit,  or 
cause  or  procure  to  be  falsely  made,  altered,  forged,  or 
counterfeited,  or  willingly  aid,  or  assist  in  the  false  mak- 
ing, altering,  forging,  or  counterfeiting,  any  bond,  bid, 
proposal,  contract,  guarantee,  security,  official  bond,  pub- 


Offenses  Against  the  Operation  of  Government.  769 

lie  record,  affidavit,  or  other  writing  for  the  purpose  of 
defrauding  the  United  States;  or  shall  utter  or  publish 
as  true,  or  cause  to  be  uttered  or  published  as  true,  or 
have  in  his  possession  with  the  intent  to  utter  or  pub- 
lish as  true,  any  such  false,  forged,  altered  or  counter- 
feited bond,  bid,  proposal,  contract,  guarantee,  security, 
official  bond,  public  record,  affidavit  or  other  writing,  for 
the  purpose  of  defrauding  the  United  States;  knowing  the 
same  to  be  false,  forged,  altered,  or  counterfeited;  or 
shall  transmit  to,  or  present,  at,  or  cause  or  procure  to 
be  transmitted  to,  or  presented  at,  the  office  of  any  offi- 
cer of  the  United  States,  any  such  false,  forged,  altered, 
or  couterfeited  bond,  bid,  proposal,  contract,  guarantee, 
security,  official  bond,  public  record,  affidavit,  or  other 
writing,  knowing  the  same  to  be  false,  forged,  altered  or 
counterfeited,  for  the  purpose  of  defrauding  the  United 
States,  shall  be  fined  not  more  than  one  thousand  dol- 
lars, or  imprisoned  not  more  than  ten  years,  or  both.  (R. 
S.,  ss.  5418,  5479.) 

U.    S.    v.    Hall,    131    U.    S.,    50;    Cross  Lehman,    39    Fed.    Rep.,    768;    U.    S.    v. 

v.    North    Carolina,    132    U.    S.,    131;    U.  Albert,     45     Fed.     Rep.     552;     U.     S.     v. 

S.    v.    Barney,     5    Blatch.,    294,    24    Fed.  Van    Leuven,    62    Fed.    Rep..    69:    Staton 

Cas.,     1011;     U.     S.     v.     Lawrence,     13  v.    U.    S.,    88    Fed.    Rep.,    253;    U.    S.    v. 

Blatch.,    211,    26    Fed.    Cas.,    878;    U.    S.  Bunting,    82    Fed.    Rep.,    883;    U.    S.    v. 

v.    Wentworth,    11    Fed.    Rep.,    52;    U.    S.  McKinley,     127     Fed.      Rep.,      166.      168; 

v.     Houghton,     14    Fed.     Rep.,     544;     U.  Neff   v.    U.    S.,    165    Fed.    Rep.,    274;    U. 

S.   v.  Tod,   25    Fed.   Rep.,   815;    U.    S.   v.  S.    v.    Cameron,     13    N.    W.    Rep.,     561; 

Barnhart,    33    Fed.    Rep.,    459;    U.    S.    v.  State    v.    White,    71     S.    W.    Rep.,    715; 

Crecilius,    34    Fed.    Rep.,    30;    U.    S.    v.  19   A.    G.    Op.,   649. 
Gowdy,     37     Fed.     Rep.     332;     U.     S.     v. 

§  29.  Forging  deeds,  powers  of  attorney,  etc. — Who- 
ever shall  falsely  make,  alter,  forge,  or  counterfeit,  or 
cause  or  procure  to  be  falsely  made,  altered,  forged,  or 
counterfeited,  or  willingly  aid  or  assist  in  the  false  mak- 
ing, altering,  forging,  or  counterfeiting,  any  deed,  power 
of  attorney,  order,  certificate,  receipt,  contract,  or  other 
writing,  for  the  purpose  of  obaining  or  receiving,  or  of 
enabling  any  other  person,  either  directly  or  indirectly, 
to  obtain  or  receive  from  the  United  States,  or  any  of 
their  officers  or  agents,  any  sum  of  money;  or  whoever 
shall  utter  or  publish  as  true,  or  cause  to  be  uttered  or 
published  as  true,  any  such  false,  forged,  altered,  or 
counterfeited  deed,  power  of  attorney,  order,  certificate, 
receipt,  contract,  or  other  writing,  with  intent  to  defraud 
the  United  States  knowing  the  same  to  be  false  altered, 
forged,  or  counterfeited;  or  whoever  shall  transmit  to, 

49 


770  Federal  Criminal  Law  Procedure. 

or  present  at,  or  cause  or  procure  to  be  transmitted  to, 
or  presented  at,  any  office  or  officer  of  the  Government 
of  the  United  States,  any  deed,  power  of  attorney,  order, 
certificate,  receipt,  contract,  or  other  writing,  in  support 
of,  or  in  relation  to,  any  account  or  claim,  with  intent  to 
defraud  the  United  States,  knowing  the  same  to  be  false, 
altered,  forged,  or  counterfeited,  shall  be  fined  not  more 
than  one  thousand  dollars  and  imprisoned  not  more  than 
ten  years.     (R.  S.,  s.  5421.) 

U.   S.  v.   Staats,   8  How.,  41;    U.   S.  v.  Rep.,    490;    U.    S.    v.    Kuentsler,    74    Fed. 

Barney,     5     Blatch.,     294,     24     Fed.     Cas.,  Rep.,    220;     U.     S.    v.     Hansee,     79     Fed. 

1011;    U.    S.   v.    Bickford,    4    Blatch.,    337,  Rep.,    303;    U.    S.    v.    Glaesener,    81'  Fed. 

24    Fed.     Cas.,     1144;     U.     S.    v.     Kohn-  Rep.,     566;     Staton    v.     U.     S.,     88    Fed. 

stamm,     5     Blatch.,     222,     26     Fed.     Cas.,  Rep.,     253;      De     Lemos     v.     U.     S.,     91 

SI 3;    U.    S.   v.    Reese,    4    Sawver,    629,    27  Fed.    Rep.,    497;     Kellog    v.     U.     S.,     103 

Fed.  Cas.,  746;  U.   S.  v.   Corbin.   11    Fed.  Fed.   Rep.,  200;   U.   S.  v.   Fout,   123   Fed. 

Rep.,     238;     U.     S.     v.     Albert,     45     Fed.  Rep.,     625;     U.     S.     v.     Swan,     131     Fed. 

Rfp.,     552;     U.     S.    v.    Moore,     60     Fed.  Rep.,     140;     Sena    v.     U.     S..     147     Fed. 

Rep.,     738;     U.     S.    v.     Kessel,     62     Fed.  Rep.,    485;    U.    S.    v.    Spaulding,    13    N. 

Rep.,     59;     U.     S.    v.     Hartman,    65     Fed.  \Y.    Rep.,    357. 

§  30.  Having  forged  papers  in  possession. — Whoever, 
knowingly  and  with  intent  to  defraud  the  United  States, 
shall  have  in  his  possession  any  false,  altered,  forged, 
or  counterfeited  deed,  power  of  attorney,  order,  certifi- 
cate, receipt,  contract,  or  other  writing,  for  the  purpose 
of  enabling  another  to  obtain  from  the  United  States,  or 
from  any  officer  or  agent  thereof,  any  sum  of  money, 
shall  be  fined  not  more  than  five  hundred  dollars,  or  im- 
prisoned not  more  than  five  vears,  or  both.  (R.  S.,  s. 
5422.) 

§  31.  False  acknowledgments. — Whoever,  being  an 
officer  authorized  to  administer  oaths  or  to  take  and  cer- 
tify acknowledgments  shall  knowingly  make  any  false  ac- 
knowledgment, certificate,  or  statement  concerning  the 
appearance  before  him  or  the  taking  of  an  oath  or  affirma- 
tion by  any  person  with  respect  to  any  proposal,  con- 
tract, bond,  undertaking,  or  other  matter,  submitted  to, 
made  with,  or  taken  on  behalf  of,  the  United  States,  and 
concerning  which  an  oath  or  affirmation  is  required  by 
law  or  regulation  made  in  pursuance  of  law,  or  with  re- 
spect to  the  financial  standing  of  any  principal,  surety, 
or  other  party  to  any  such  proposal,  contract,  bond,  un- 
dertaking, or  other  instrument,  shall  be  fined  not  more 
than  two  thousand  dollars,  or  imprisoned  not  more  than 
two  years,  or  both. 


Offenses  Against  the  Operation  of  Government.  771 

§  32.  Falsely  pretending  to  be  United  States  officer. 
— Whoever,  with  intent  to  defraud  either  the  United 
States  or  any  person,  shall  falsely  assume  or  pretend  to 
be  an  officer  or  employee  acting  under  the  authority  of 
the  United  States,  or  any  department,  or  any  officer  of 
the  Government  thereof,  and  shall  take  upon  himself  to 
act  as  such,  or  shall  in  such  pretended  character  demand 
or  obtain  from  any  person  or  from  the  United  States,  or 
any  department,  or  any  officer  of  the  Government  there- 
of, any  money,  paper,  document,  or  other  valuable  thing, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  im- 
prisoned not  more  than  three  years,  or  both.  (R.  S.,  s. 
5448.    18  Apr.,  1884,  23  Stat.  L.  11,  c.  26;  1  Supp.,  425.) 

U.  S.  v.  Curtain,  43  Fed.  Rep.,  433:  U.  S.  v.  Ballard,  118  Fed.  Rep.,  757; 
U.  S.  v.  Bradford,  53  Fed.  Rep.,  542;  U.  S.  v.  Farnham,  127  Fed.  Rep.,  478; 
U.    S.    v.    Taylor,     108    Fed.    Rep.,    621;         Uttel    v.    U.    S.,    169    Fed.    Rep.,    620. 

§  33.  False  personation  of  holder  of  public  stocks. — 
Whoever  shall  falsely  personate  any  true  and  lawful 
holder  of  any  share  or  sum  in  the  public  stocks  or  debt 
of  the  United  States,  or  any  person  entitled  to  any  an- 
nuity, dividend',  pension,  prize  money,  wages,  or  other 
debt  due  from  the  United  States,  and,  under  color  of 
such  false  personation,  shall  transfer  or  endeavor  to 
transfer  such  public  stock  or  any  part  thereof,  or  shall 
receive  or  endeavor  to  receive  the  money  of  such  true 
and  lawful  holder  thereof,  or  the  money  of  any  person 
really  entitled  to  receive  such  annuity,  dividend,  pen- 
sion, prize  money,  wages,  or  other  debt,  shall  be  fined 
not  more  than  five  thousand  dollars  and  imprisoned  not 
more  than  ten  years.     (R.  S.  s.  5435.) 

§  34.  False  demand  or  fraudulent  power  of  attorney. 
— Whoever  shall  knowingly  or  fraudulently  demand  or 
endeavor  to  obtain  any  share  or  sum  in  the  public  stocks 
of  the  United  States,  or  to  have  any  part  thereof  trans- 
ferred, assigned,  sold,  or  conveyed,  or  to  have  any  an- 
nuity, dividend,  pension,  prize  money,  wages,  or  other 
debt  due  from  the  United  States,  or  any  part  thereof, 
received,  or  paid  by  virtue  of  any  false,  forged,  or  coun- 
terfeited power  of  attorney,  authority,  or  instrument,  shall 
be  fined  not  more  than  five  thousand  dollars  and  imprison- 
ed not  more  than  ten  years.     (R,  S.,  s.  5436.) 

U.   S.  v.   Logan,   105   Fed.   Rep.,  240, 


772  Federal,  Criminal  Law  Procedure. 

§  35.  Making  or  presenting  false  claims. — Whoever 
shall  make  or  cause  to  be  made,  or  present  or  cause 
to  be  presented,  for  payment  or  approval,  to  or  by  any 
person  or  officer  in  the  civil,  military,  or  naval  service 
of  the  United  States,  any  claim  upon  or  against  the 
Government  of  the  United  States,  or  any  department  or 
officer  thereof,  knowing  such  claim  to  be  false,  ficti- 
tious, or  fraudulent;  or  whoever,  for  the  purpose  of  ob- 
taining or  aiding  to  obtain  the  payment  or  approval  of 
such  claim,  shall  make  or  use,  or  cause  to  be  made  or 
used,  any  false  bill,  receipt,  voucher,  roll,  account,  claim, 
certificate,  affidavit,  or  deposition,  knowing  the  same  to 
contain  any  fraudulent  or  fictitious  statement  or  entry; 
or  whoever  shall  enter  into  any  agreement,  combination, 
or  conspiracy  to  defraud  the  Government  of  the  United 
States,  or  any  department  or  officer  thereof  by  obtaining 
or  aiding  to  obtain  the  payment  or.  allowance  of 
any  false  or  fraudulent  claim;  or  whoever,  having 
charge,  possession,  custody,  or  control  of  any  money  or 
other  public  property  used  or  to  be  used  in  the  military 
or  naval  service,  with  intent  to  defraud  the  United  States 
or  willfully  to  conceal  such  money  or  other  property, 
shall  deliver  or  cause  to  be  delivered,  to  any  other  person 
having  authority  to  receive  the  same,  any  amount  of 
such  money  or  other  property  less  than  that  for  which  he 
received  a  certificate  or  took  a  receipt;  or  whoever,  being 
authorized  to  make  or  deliver  any  certificate,  voucher, 
receipt,  or  other  paper  certifying  the  receipt  of  arms, 
ammunition,  provisions,  clothing,  or  other  property  so 
used  or  to  be  used,  shall  make  or  deliver  the  same  to  any 
other  person  without  a  full  knowledge  of  the  truth  of 
the  facts  stated  therein,  and  with  intent  to  defraud  the 
United  States,  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both. 
And  whoever  shall  knowingly  purchase  or  receive  in 
pledge  for  any  obligation  or  indebtedness  from  any 
soldier,  officer,  sailor,  or  other  person  called  into  or  em- 
ployed in  the  military  or  naval  service,  any  arms,  equip- 
ments, ammunition,  clothes  military  stores,  or  other 
public  property,  whether  furnished  to  the  soldier,  sail- 
or officer,  or  person,  under  a  clothing  allowance  or  other- 


Offenses  Against  the  Operation  of  Government.  773 


wise,  such  soldier,  sailor,  officer,  or  other  person  not 
having  the  lawful  right  to  pledge  or  sell  the  same,  shall 
be  fined  not  more  than  five  hundred  dollars,  and  im- 
prisoned not  more  than  two  years.  (R.  S.,  s.  5438.  30 
May,  1908,  35  Stat.  L.,  555,  c.  235.) 


U.  S.  v.  Perrin,  131  U.  S.,  55;  In 
re  I,uis  Oteiza  v.  Cortes,  136  U.  S., 
330;  Ingraham  v.  U.  S.  155  U.  S.,  434, 
49  Fed.  Rep.,  155;  Lalone  v.  U.  S., 
164  U.  S.,  255;  Edington  v.  U.  S.,  164 
U.  S.,  361;  Ex  parte  Shaffenburg,  4 
Dillon,  271,  21  Fed.  Cas.,  1144;  U. 
S.  v.  Bittinger,  21  Int.  Rev.  Rec..  342, 
24  Fed.  Cas.,  1150;  U.  S.  v.  Wright, 
2  Cranch  C.  C,  296,  28  Fed.  Cas.  790; 
U.  S.  v.  Ambrose,  2  Fed.  Rep.,  764; 
U.  S.  v.  Coggin,  3  Fed.  Rep.,  492;  U. 
S.  v.  Murphy,  9  Fed.  Rep.,  27;  U.  S. 
v.  Wentworth,  11  Fed.  Rep.,  52;  U.  S. 
v.  Corbin.  11  Fed.  Rep.,  238;  U.  S. 
v.  Griswold,  11  Fed.  Rep.,  807;  U.  S. 
v.  Hull,  14  Fed.  Rep.,  324;  U.  S.  v. 
Houghton,  14  Fed.  Rep.,  544;  U.  S.  v. 
Miskell,  15  Fed.  Rep.,  369;  U.  S.  v. 
Daubner,  17  Fed.  Rep.,  793;  U.  S.  v. 
Russell,  19  Fed.  Rep.,  591;  U.  S.  v. 
Griswold,  24  Fed.  Rep.,  361;  U.  S.  v. 
Frisbie,  28  Fed.  Rep.,  808;  U.  S.  v. 
Rhodes,     30     Fed.     Rep.,     431;     U.     S.    v. 


Griswold  30  Fed.  Rep.,  604;  U.  S.  v. 
Griswold,  30  Fed.  Rep.,  762;  U.  S.  v. 
Reichert,  32  Fed.  Rep.,  142;  U.  S. 
v.  Jones,  32  Fed.  Rep.,  482;  U.  S.  v. 
Route,  33  Fed.  Rep.,  246;  U.  S.  v. 
Gowdy,  37  Fed.  Rep.,  332;  U.  S.  v. 
Wallace,  40  Fed.  Rep.,  144;  U.  S.  v. 
Newton,  48  Fed.  Rep.,  218;  U.  S.  v. 
Strobach,  48  Fed.  Rep.,  902;  U.  S. 
v.  Adler,  49  Fed.  Rep.,  733;  U.  S.  v. 
Van  Eeuven,  62  Fed.  Rep.,  62;  U.  S. 
v.  Hartman,  65  Fed.  Rep.,  490;  Rhodes 
v.  U.  S.,  79  Fed.  Rep.,  740;  Dimmick 
v.  U.  S.,  116  Fed.  Rep.,  825;  U.  S.  v. 
Lair,  118  Fed.  Rep.,  98;  Pooler  v.  G. 
S.,  127  Fed.  Rep.,  509;  Bridgeman  v. 
U.  S.,  140  Fed.  Rep.,  577;  U.  S.  v. 
Hart,  146  Fed.  Rep.,  202;  U.  S.  v. 
Michael,  153  Fed.  Rep.,  609;  Greene 
v.  U.  S.,  154  Fed.  Rep.,  401;  U.  S. 
v.  Koplik,  155  Fed.  Rep.,  919;  U.  S. 
v.  Smith,  156  Fed.  Rep.,  859;  In  re 
Peraltareavis,  41  Pac.  Rep.,  538;  18  A. 
G.  Op.,  72. 


§  36.  Embezzling  arms,  stores,  etc. — Whoever  shall 
seal,  embezzel,  or  knowingly  apply  to  his  own  use,  or 
unlawfully  sell,  convey,  or  dispose  of,  any  ordinance, 
arms,  ammunition,  clothing,  subsistence,  stores,  money, 
or  other  property  of  the  United  States,  furnished  or  to 
be  used  for  the  military  or  naval  service,  shall  be  punish- 
ed as  prescribed  in  the  preceding  section.    (R.  S.,  s.  5439.) 

Johnson   v.    Sayre,    158   U.    S.,    109;    U.         1184;     U.    S.    v.    Murphy,    9    Fed.    Rep., 
S.   v.    Bogart,    3   Ben.,   257,   24   Fed.   Cas.,        26. 

§  37.  Conspiracy  to  commit  offense  against  the  United 
States;  all  liable  for  acts  of  one. — If  two  or  more  persons 
conspire  either  to  commit  any  offense  against  the  United 
States,  or  to  defraud  the  United  States  in  any  manner 
or  for  any  purpose,  and  one  or  more  of  such  parties  do 
any  act  to  effect  the  object  of  the  conspiracy,  each  of  the 
parties  to  such  conspiracy  shall  be  fined  not  more  than 
ten  thousand  dollars,  or  imprisoned  not  more  than  two 
years,  or  both.  (R.  S.,  s.  5440.  17  May,  1879,  21  Stat.  L., 
4,  c.  8;  1  Supp.,  264.) 


y 


Ex  parte  Carstendick,  93  U.  S.,  396; 
U.  S.  v.  Hirsch,  100  U.  S.,  33;  U.  S.  v. 
Chouteau,  102  U.  S.  603;  U.  S.  v.  Brit- 
ton,  108  U.  S.,  192;  Mackin  v.  U.  S., 
117  U.  S.,  348;  U.  S.  v.  Hess,  124  U. 
S.,  483;  Re  Coy,  31  Fed.  Rep.,  794,  127 
U.   S.,   731;   U.   S.  v.   Perrin,   131   U.   S.. 


U.  S.,  148  U.  S.,  197;  Ex  parte  Eenon 
150  U.  S.,  393;  Dealy  v.  U.  S.,  152  U. 
S.,  539;  Vannon  v.  U.  S.,  156  U.  S.,  464; 
Stokes  v.  U.  S.,  157  U.  S.,  187;  Clune  v. 
U.  S.,  159  U.  S.,  590;  France  v.  U.  S., 
164  U.  S.,  676;  Williamson  v.  U.  S.,  207 
U.   S.,  425;   U.    S.   v.   Keitel,   211    U.    S. 


55;  U.   S.  v.  Barber,   140  U.   S.,   177,  U.        370;    U.    S.    v.    Biggs,    211    U.    S.,    507; 
S.  v.  Logan,  144  U.  S.,  263,  Pettibone  v.       Crawford  v.   U.    S.,   212   U.    S.,    183;    Re 


774 


Federal  Criminal  Law  Procedure. 


Callicot,  8  Int.  Rev.  Rec,  169,  4  Fed. 
Cas.,  1075;  U.  S.,  v.  Bayer,  4  Dillon,  407,. 
24  Fed.  Cas.  1046;  U.  S.  v.  Boyden,  1 
Lowell,  266,  24  Fed.  Cas.,  1213;  U.  S. 
v.  Crafton,  4  Dillon,  145,  25  Fed.  Cas., 
681,  U.  S.  v.  DeGrieff,  16  Blatch.,  20,  25 
Fed.  Cas.,  799;  U.  S.  v.  Denee,  3  Woods, 
47,  25  Fed.  Cas.,  818;  U.  S.  v.  Donau, 
11  Blatch,  168,  25  Fed.  Cas.,  890;  U.  S. 
v.  Goldberg,  7  Biss.,  175,  25  Fed.  Cas., 
1342;  U.  S.  v.  Hammond,  2  Woods,  197, 
26  Fed.  Cas.,  99;  U.  S.  v.  McDonald,  3 
Dillon,  543,  26  Fed.  Cas.,  1085;  U.  S.  v. 
McKee,  4  Dillon,  128,  26  Fed.  Cas.,  -1116; 
U.  S.  v.  Martin,  4  Cliff,  156,  26  Fed. 
Cas.,  1175;  U.  S.  v.  Bindskopf,  6  Biss, 
259,  27  Fed.  Cas.,  813;  U.  S.  v.  Nunne- 
macher,  7  Biss.,  Ill,  27  Fed.  Cas.,  197; 
U.  S.  v.  Smith,  2  Bond,  323,  27  Fed.  Cas.. 
1144;  U.  S.  v.  Stevens,  2  Haskell,  164,  21 
Fed.  Cas.,  1312;  U.  S.  v.  Walsh,  5  Dillon, 
58,  28  Fed.  Cas.,  394;  U.  S.  v.  Sacia,  2 
Fed.  Rep.,  754;  Mussel  Slough  case,  5 
Fed.  Rep.,  680;  U.  S.  v.  Sanche,  7  Fed. 
Rep.,  715;  U.  S.  v.  Burgess,  9  Fed.  Rep., 
896;  U.  S.  v.  Watson,  17  Fed.  Rep..  145; 
U.  S.  v.  Gordon,  22  Fed.  Rep.,  250;  U.  S. 
v.  Payne,  22  Fed.  Rep.,  426;  U.  S.  v. 
Kane,  23  Fed.  Rep.,  748;  U.  S.  v.  John- 
son, 26  Fed.  Rep.,  682:  Re  Wolf,  27  Fed. 
Rep.,  606;  U.  S.  v.  Frisbie,  28  Fed.  Rep., 
808;  U.  S.  v.  Thompson,  29  Fed.  Rep.,  86; 
U.  S.  v.  Wooten,  29  Fed.  Rep..  702;  U. 
S.  v.  Thompson,  31  Fed.  Rep.,  331;  U.  S. 
v.  Reichert,  32  Fed.  Rep.,  142;  U.  S.  v. 
Owen,  32  Fed.  Rep.,  534;  U.  S.  v.  Jo- 
hannesen.  35  Fed.  Rep.,  411;  U.  S.  v. 
Milner,  36  Fed.  Rep.,  890;  U.  S.  v.  Smith, 
40  Fed.  Rep.,  755;  U.  S.  v.  Stevens,  44 
Fed.  Rep.,  132;  U.  S.  v.  Gardner,  42 
Fed.  Rep.,  829;  U.  S.  v.  Lancaster,  44 
Fed.  Rep.,  896;  Re  Newton,  48  Fed.  Rep., 
218;  U.  S.  v.  Adler,  49  Fed.  Rep.,  736; 
U.  S.  v.  Newton,  52  Fed.  Rep.,  275; 
Toledo,  &c,  R.  Co.,  v.  Penn.  Co.,  54  Fed. 
Rep.,  730;  Waterhouse  v.  Conner,  55  Fed. 
Rep.,  150;  U.  S.  v.  Howell,  56  Fed.  Rep., 
21;  In  re  Benson,  58  Fed.  Rep.,  962:  U. 
S.  v.  Wilson,  60  Fed.  Rep.,  890;  U.  S.  v. 
Van  Leuven,  62  Fed.  Rep.,  62:  Thomas 
v.  Ry.  Co.,  62  Fed.  Rep.,  803;  Re  Phelan, 
62  Fed.  Rep.,  803;  Charge  to  Grand  Jury. 
62  Fed.  Rep.,  828,  840;  U.  S.  v.  Debs.  63 
Fed.  Rep..  436;  U.  S.  v.  Barrett,  65  Fed. 
Rep.,  62;  U.  S.  v.  Cassidv,  67  Fed.  Rep.. 
698;  U.  S.  v.  Benson,  70  Fed.  Rep..  591; 
U.   S.  v.  McCord,   72  Fed.   Rep.,   159;   U. 


S.  v.  Bunting,  82  Fed.  Rep.,  883;  U.  S.  v. 
Taffe,  86  Fed.  Rep.,  113;  Berkowitz  v. 
U.  S.,  93  Fed.  Rep.,  452;  U.  S.  v. 
Sweeney,  95  Fed.  Rep.,  434;  Reilley  v. 
U.  S.  106  Fed.  Rep.,  896;  Gantt  v.  U.  S., 
108,  Fed.  Rep.,  61;  Wright  v.  U.  S.  108 
Fed.  Rep.,  805;  U.  S.  v.  Greene,  113  Fed. 
Rep.  683;  115  Fed.  Rep.,  343;  McKnight 
v.  U.  S.,  115  Fed.  Rep.,  972;  U.  S.  v. 
Teuschel,  116  Fed.  Rep.,  642;  U.  S.  v. 
Clark,  121  Fed.  Rep.,  190;  U.  S.  v.  Cur- 
ley,  122  Fed.  Rep.,  316;  U.  S.  v.  Marx, 
122  Fed.  Rep.,  964;  U.  S.  v.  McKinley, 
126    Fed.    Rep.,    242;    U.    S.    v.    Dietrich, 

126  Fed.    Rep.,    664;    Lehman    v.    U.    S.. 

127  Fed.  Rep.,  42;  Conrad  v.  U.  S.,  127 
Fed.  Rep.,  798;  Radford  v.  U.  S.,  129 
Fed.  Rep.,  49;  Curley  v.  U.  S.,  130  Fed. 
Rep.,  1;  Scott  v.  U.  S.,  130  Fed.  Rep., 
429;  U.  S.  v.  Grunberg,  131  Fed.  Rep.. 
137;  U.  S.  v.  Radford,  131  Fed.  Rep., 
378;  U.  S.  v.  Hyde,  132  Fed.  Rep..  545; 
Olson  v.  U.  S.,  133  Fed.  Rep..  849; 
M'Gregor  v.  U.  S.,  134  Fed.  Rep.,  187; 
U.  S.  v.  Stone,  135  Fed.  Rep.,  392;  U.  S. 
v.  Scott,  139  Fed.  Rep.,  697;  U.  S.  v. 
Mitchell,  141  Fed.  Rep.,  666;  U.  S.  v. 
Cohn,  142  Fed.  Rep.,  983;  Wilder  v.  U. 
S..  143  Fed.  Rep.,  433;  U.  S.  v.  Thomas. 
145  Fed.  Rep.,  74;  Grumberg  v.  U.  S., 
145  Fed.  Rep.,  81;  U.  S.  v.  Greene,  146 
Fed.  Rep.,  803;  Robens  v.  U.  S.  146  Fed. 
Rep.,  978;  U.  S.  v.  Bradford,  148  Fed. 
Rep.,  413;  U.  S.  v.  Brace,  149  Fed.  Rep., 
874;  U.  S.  v.  Richards,  149  Fed.  Rep., 
443;  U.  S.  v.  Burkett,  150  Fed.  Rep., 
208;  Bradford  v.  U.  S.,  152  Fed.  Rep., 
617;  Stearns  v.  U.  S.,  152  U.  S.,  900; 
U.  S.  v.  Peeke,  153  Fed.  Rep.,  166; 
Greene  v.  U.  S..  154  Fed.  Rep.,  401; 
Ware  v.  U.  S.,  154  Fed.  Rep.,  577; 
Thomas  v.  U.  S.,  156  Fed.  Rep.,  897; 
U.  S.  v.  Biggs,  157  Fed.  Rep.,  264;  U.  S. 
v.  Keitel,  157  Fed.  Rep.,  396;  \J.  S.  v. 
Robbins,  157  Fed.  Rep..  999;  Tohnson  v. 
U.  S.,  158  Fed.  Rep.,  69;  U.  S.  v.  Lona- 
baugh,  158  Fed.  Rep.,  314;  U.  S.  v. 
Black,  160  Fed.  Rep.,  431;  U.  S.  v.  Corn- 
stock,  162  Fed.  Rep.,  415:  Jones  v.  U.  S.. 
162  Fed.  Rep.,  417;  U.  S.  v.  Wells,  163 
Fed.  Rep.,  313:  U.  S.  v.  Haas,  163  Fed. 
Rep.,  908;  U.  S.  v.  Clark,  164  Fed.  Rep., 
75;  U.  S.  v.  Grodson.  164  Fed.  Rep..  157; 
LT.  S.  v.  Stamatonoulos.  164  Fed.  Rep., 
524:  Scott  v.  U.  S.,  165  Fed.  Rep.,  172; 
14  A.  G.  Op.,  43. 


§  38.  Delaying  or  defrauding  captor  or  claimant,  etc., 
of  prize  property. — Whoever  shall  willfully  do,  or  aid 
or  advise  in  the  doing,  of  any  act  relating  to  the  bring- 
ing in,  custody,  preservation,  sale,  or  other  disposition 
of  any  property  captured  as  prize,  or  relating  to  and  docu- 
ments or  papers  connected  with  the  property,  or  to  any 
deposition  or  other  document  or  paper  connected  with 
the  proceedings,  with  intent  to  defraud,  delay,  or  injure 
the  United  States  or  any  captor  or  claimant  of  such  prop- 
erty, shall  be  fined  not  more  than  ten  thousand  dollars, 
or  imprisoned  not  more  than  five  years,  or  both.  (R. 
S.,  s.  5441.) 


Offenses  Against  the  Operation  of  Goveenment.  775 


§  39.  Bribery  of  United  States  officer. — Whoever 
shall  promise,  offer,  or  give,  or  cause  or  procure  to  be 
promised,  offered,  or  given,  any  money  or  other  thing 
of  value,  or  shall  make  or  tender  any  contract,  under- 
taking, obligation,  gratuity,  or  security  for  the  payment 
of  money,  or  for  the  delivery  or  conveyance  of  anything 
of  value,  to  any  officer  of  the  United  States,  or  to  any 
person  acting  for  or  on  behalf  of  the  United  States  in 
any  official  function,  under  or  by  authority  of  any  de- 
partment or  office  of  the  Government  thereof,  or  to  any 
officer  or  person  acting  for  or  on  behalf  of  either  House 
of  Congress,  or  of  any  committee  of  either  House,  or 
both  Houses  thereof,  with  intent  to  influence  his  decision 
or  action  on  any  question,  matter,  cause,  or  proceeding 
which  may  at  any  time  be  pending,  or  which  may  by 
law  be  brought  before  him  in  his  official  capacity,  or  in 
his  place  of  trust  or  profit,  or  with  intent  to  influence 
liim  to  commit  or  aid  in  committing,  or  to  collude  in, 
or  allow,  any  fraud,  or  make  opportunity  for  the  com- 
mission of  any  fraud,  on  the  United  States,  or  to  induce 
him  to  do  or  omit  to  do  any  act  in  violation  of  his  law- 
ful duty,  shall  be  fined  not  more  than  three  times  the 
amount  of  money  or  value  of  the  thing  so  offered,  pro- 
mised, given,  made,  or  tendered,  or  caused  or  procured 
to  be  so  offered,  promised,  given,  made,  or  tendered,  and 
imprisoned  not  more  than  three  years.   (E.  S.,  s.  5451.) 


Rep.,  145;  U.  S.  v.  Boyer,  85  Fed.  Rep.. 
425;  U.  S.  v.  Ingham,  97  Fed.  Rep.,  935; 
U.  S.  v.  Green,  136  Fed.  Rep..  618; 
Vernon  v.   U.   S.,   146   Fed.   Rep.,   121. 


U.  S.  v.  Worrall,  2  Dall.,  388;  In  re 
Paliser,  136  U.  S.,  257;  U.  S.  v.  Gibson, 
47  Fed.  Rep.,  833;  U.  S.  v.  Kissel,  62 
Fed.  Rep.,  57;  U.  S.  v.  Van  Leuven,  62 
Fed.    Rep.,    62;    In    re    Yee    Gee,    83    Fed. 

§  40.  Unlawfully  taking  or  using  papers  relating  to 
claims. — Whoever  shall  take  and  carry  away,  without 
authority  from  the  United  States,  from  the  place  where 
it  has  been  filed,  lodged,  or  deposited,  or  where  it  may 
for  the  time  being  actually  be  kept  by  authority  of  the 
United  States,  any  certificate,  affidavit,  deposition,  written 
statement  of  facts,  power  of  attorney,  receipt,  voucher, 
assignment,  or  other  document,  record,  file,  or  paper, 
prepared,  fitted,  or  intended  to  be  used  or  presented  in 
order  to  procure  the  payment  of  money  from  or  by  the 
United  States,  or  any  officer  or  agent  thereof,  or  the  allow- 
ance or  payment  of  the  whole  or  any  part  of  any  claim, 


776  Federal  Criminal  Law  Procedure. 

account,  or  demand  against  the  United  States,  whether 
the  same  has  or  has  not  already  been  so  used  or  present- 
ed, and  whether  such  claim,  account,  or  demand,  or  any 
part  thereof,  has  or  has  not  already  been  allowed  or 
paid;  or  whoever  shall  present,  use,  or  attempt  to  use, 
any  such  document,  record,  file,  or  paper  so  taken  and 
carried  away,  in  order  to  procure  the  payment  of  any 
money  from  or  by  the  United  States,  or  any  officer  or 
agent  thereof,  or  the  allowance  or  payment  of  the  whole 
or  any  part  of  any  claim,  account,  or  demand  against  the 
United  States,  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  ten  years,  or  both. 
(E.  S.,  s.  5454.) 

§  41.  Persons  interested  not  to  act  as  agents  of  the 
Government. — No  officer  or  agent  of  any  corporation, 
joint  stock  company,  or  association,  and  no  member  or 
agent  of  any  firm,  or  person  directly  or  indirectly  inter- 
ested in  the  pecuniary  profits  or  contracts  of  such  cor- 
poration, joint  stock  company,  association,  or  firm,  shall 
be  employed  or  shall  act  as  an  officer  or  agent  of  the 
United  States  for  the  transaction  of  business  with  such 
corporation,  joint  stock  company,  association,  or  firm. 
Whoever  shall  violate  the  provision  of  this  section  shall 
be  fined  not  more  than  two  thousand  dollars  and  im- 
prisoned not  more  than  two  years.     (R.  S.,  s.  1783.) 

§  42.  Enticing  desertions  from  the  military  or  naval 
service. — Whoever  shall  entice  or  procure,  or  attempt 
or  endeavor  to  entice  or  procure,  any  soldier  in  the  mili- 
tary service,  or  any  seaman  or  other  person  in  the  naval 
service  of  the  United  States,  or  who  has  been  recruited 
for  such  service,  to  desert  therefrom,  or  shall  aid  any 
such  soldier,  seaman,  or  other  person  in  deserting  or  in 
attempting  to  desert  from  such  service;  or  whoever  shall 
harbor,  conceal,  protect,  or  assist  any  such  soldier,  sea- 
man, or  other  person  who  may  have  deserted  from  such 
service,  knowing  him  to  have  deserted  therefrom,  or 
shall  refuse  to  give  up  and  deliver  such  soldier,  seaman, 
or  other  person  on  the  demand  of  any  officer  authorized 
to  receive  him,  shall  be  imprisoned  not  more  than  three 


Offenses  Against  the  Operation  of  Government.  777 

years  and  lined  not  more  than  two  thousand  dollars.     (R. 
S.,  ss.  1553,  5455.    27  Feb.,  1877,  19  Stat.  L.,  253,  c.  69.) 

Kurtz    v.    Moffitt,    IIS    U.    S.    487;     U. 
S.  v.   Clark,  25   Fed.   Cas.,  452. 

§  43.  Enticing  away  workmen. — Whoever  shall  pro- 
cure or  entice  any  artificer  or  workman  retained  or  em- 
ployed in  any  arsenal  or  armory,  to  depart  from  the  same 
during  the  continuance  of  his  engagement,  or  to  avoid 
or  break  his  contract  with  the  United  States;  or  who- 
ever, after  due  notice  of  the  engagement  of  such  work- 
man or  artificer,  during  the  continuance  of  such  engage- 
ment, shall  retain,  hire,  or  in  anywise  employ,  harbor, 
or  conceal  such  artificer  or  workman,  shall  be  fined  not 
more  than  fifty  dollars,  or  imprisoned  not  more  than  three 
months,  or  both.     (R.  S.,  s.  1668.) 

§  44  Injuries  to  fortifications,  harbor  defenses,  etc. 
— Whoever  shall  willfully  trespass  upon,  injure,  or  des- 
troy any  of  the  works  or  property  or  material  of  any 
submarine  mine  or  torpedo,  or  fortification  or  harbor- 
defense  system  owned  or  constructed  or  in  process  of 
construction  by  the  United  States,  or  shall  willfully  inter- 
fere with  the  operation  or  use  of  any  such  submarine 
mine,  torpedo,  fortification,  or  harbor-defense  system, 
shall  be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  five  years,  or  both.  (7  July, 
1898,  30  Stat.  L.,  717,  c.  576,  s.  1;  2  Supp.  885.) 

§  45.  Unlawfully  entering  upon  military  reservation, 
fort,  etc. — Whoever  shall  go  upon  any  military  reserva- 
tion, army  post,  fort,  or  arsenal,  for  any  purpose  pro- 
hibited by  law  or  military  regulation  made  in  pursuance 
of  law,  or  whoever  shall  reenter  or  ue  found  within  any 
such  reservation,  post,  fort,  or  arsenal,  after  having  been 
removed  therefrom  or  ordered  not  to  reenter  by  any  of- 
ficer or  person  in  command  or  charge  thereof,  shall  be 
fined  not  more  than  five  hundred  dollars,  or  imprisoned 
not  more  than  six  months,  or  both. 

§  46.  Robbery  or  larceny  of  personal  property  of  the 
United  States. — Whoever  shall  rob  another  of  any  kind 
or  description  of  personal  property  belonging  to  the 
United  States,  or  shall  feloniously  take  and  carry  away 
the  same,  shall  be  fined  not  more  than  five  thousand  dol- 


778  Federal  Criminal  Law  Procedure. 

lars,  or  imprisoned  not  more  than  ten  years,  or  both.     (R. 
S.,  s.  5456.) 

Jolly  v.  U.  S.,  170  U.  S.,  402;  U.  S. 
v.  Jones,  69  Fed.  Rep.,  973;  Keller  v. 
U.  S.,  168  Fed.  Rep.,  697. 

§.  47.  Embezzling,  stealing,  etc.,  public  property. — 
Whoever  shall  embezzle,  steal,  or  purloin  any  money, 
property,  record,  voucher,  or  valuable  thing  whatever, 
of  the  moneys,  goods,  chattels,  records,  or  property  of  the 
United  States,  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  five  years  or  both. 
(3  Mar.,  1875,  18  Stat.  L.,  479,  c.  144,  s.  1;  1  Supp.,  88.) 

Moore  v.  U.  S.,   160  U.  S.,  268;   Faust  764;    U.    S.   v.    Borneman,    26    Fed.    Rep., 

v.   U.    S.,    163   U.    S.   452;    U.    S.  v.   Gil-  257;   U.    S.   v.  Jones,   69   Fed.   Rep.,   973; 

bert,   17  Int.  Rev.  Rec.,  54,  25  Fed.   Cas.,  Dimmick  v.  U.   S.,   135  Fed.   Rep.,  25/. 
1318;    U.    S.   v.    DeGroat,    30    Fed.    Rep., 

§  48.  Receivers,  etc.,  of  stolen  public  property. — Who- 
ever shall  receive,  conceal,  or  aid  in  concealing,  or  shall 
have  or  retain  in  his  possession  with  intent  to  convert 
to  his  own  use  or  gain,  any  money,  property,  record, 
voucher,  or  valuable  thing  whatever,  of  the  moneys, 
goods,  chattels,  records,  or  property  of  the  United  States, 
which  has  theretofore  been  embezzled,  stolden,  or  pur- 
loined by  any  other  person,  knowing  the  same  to  have 
been  so  embezzled,  stolen,  or  purloined,  shall  be  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  five  years  or  both;  and  such  person  may  be  tried 
either  before  or  after  the  conviction  of  the  principal  of- 
fender. (3  Mar.,  1875,  18  Stat.  L.,  479,  c.  144,  s.  2;  1 
Supp.,   88.) 

Kerby  v.  U.  S.,  174  U.  S.,  47;  U.  S.  796;  U.  S.  v.  Montgomery,  3  Sawy.,  544, 
v.    De    Bare,    6    Biss,    358,    25    Fed.    Cas.,        26   Fed.    Cas.,    1296. 

§  49.  Timber  depredations  on  public  lands. — Who- 
ever shall  cut,  or  cause  or  procure  to  be  cut,  or  shall 
wantonly  destroy,  or  cause  to  be  wantonly  destroyed,  any 
timber  growing  on  the  public  lands  of  the  United  States; 
or  whoever  shall  remove,  or  cause  to  be  removed,  any 
timber  from  said  public  lands,  with  intent  to  export  or 
to  dispose  of  the  same;  or  whoever,  being  the  owner, 
master,  or  consignee  of  any  vessel,  or  the  owner,  director, 
or  agent  of  any  railroad,  shall  knowingly  transport  any 
timber  so  cut  or  removed  from  said  lands,  or  lumber 
manufactured  therefrom,  shall  be  fined  not  more  than 
one  thousand  dollars,  or  imprisoned  not  more  than  one 


Offenses  Against  the  Operation  of  Government.  779 

year,  or  both.  Nothing  in  this  section  shall  prevent  any 
miner  or  agriculturalist  from  clearing  his  land  in  the 
ordinary  working  of  his  mining  claim,  or  in  the  pre- 
paration of  his  farm  for  tillage,  or  from  taking  the  timber 
necessary  to  support  his  improvements,  or  the  taking  of 
timber  for  the  use  of  the  United  States.  And  nothing 
in  this  section  shall  interfere  with  or  take  away  any 
right  or  privilege  under  any  existing  law  of  the  United 
States  to  cut  or  remove  timber  from  any  public  land. 
(3  June,  1878,  20  Stat.  L.,  90,  c.  151,  s.  4;  1  Supp.,  168. 
4  Aug.,  1892,  27  Stat.  L.,  348,  c.  375,  s.  2;  2  Supp.,  65.) 

Railroad  Co.  v.  U.  S.,  40  Fed.  Rep.,  419; 
U.  S.  v.  Garretson,  42  Fed.  Rep.,  22;  U. 
S.  v.  Kankapot,  43  Fed.  Rep.,  64;  U.  S. 
v.  Reder,  69  Fed.  Rep.,  965;  U.  S.  v. 
Hacker,  73  Fed.  Rep.,  292;  Pine  River 
L.  Co.,  v.  Improvement  Co.,  89  Fed.  Rep., 
907;  Grubbs  v.  U.  S.,  105  Fed.  Rep., 
314;  Bryant  v.  U.  S.,  105  Fed.  Rep.,  941; 
Teller  v.  IT.  S..  113  Fed.  Rep.,  273; 
Morgan  v.  U.  S.,  148  Fed.  Rep.,  189; 
Nickell  v.  U.  S.,  167  Fed.  Rep.,  741; 
Robnett  v.  U.  S.,  169  Fed.  Rep.,  778;  18 
A.   G.    Op.,   555. 


Railroad  Co.  v.  U.  S.,  149  U.  S.,  733 
Stone  v.  U.  S.,  159  U.  S.,  491 
U.  S.  v.  Nelson,  27  Fed.  Cas.,  86 
The  Timber  Cases,  11  Fed.  Rep.,  81 
U.  S.  v.  Smith,  11  Fed.  Rep.,  487;  U 
S.  v.  Stores,  14  Fed.  Rep.,  824;  U.  S 
v.  Yoder,  18  Fed.  Rep.,  372;  U.  S.  v 
Williams,  18  Fed.  Rep.,  475;  U.  S.  v 
Lane,  19  Fed.  Rep.,  910;  U.  S.  v.  Ben 
jamin,  21  Fed.  Rep.,  285;  U.  S.  v 
T.eatherbury.  27  Fed.  Rep.,  606;  32  Fed 
Rep.,  780;  U.  S.  v.  Ball,  31  Fed.  Rep. 
667;  U.  S.  v.  Murphy,  32  Fed.  Rep.,  376 
U.    S.    v.    Edwards,    38    Fed.    Rep.,    812 

§  50.  Timber,  etc.,  depredations  on  Indian  and  other 
reservations. — Whoever  shall  unlawfully  cut,  or  aid  in 
unlawfully  cutting,  or  shall  wantonly  injure  or  destroy, 
or  procure  to  be  wantonly  injured  or  destroyed,  any  tree, 
growing,  standing,  or  being  upon  any  land  of  the  United 
States  which,  in  pursuance  of  law,  has  been  reserved  or 
purchased  by  the  United  States  for  any  public  use,  or 
upon  any  Indian  reservation  or  lands  belonging  to  or 
occupied  by  any  tribe  of  Indians  under  the  authority  of 
the  United  States,  or  any  Indian  allotment  while  the 
title  to  the  same  shall  be  held  in  trust  by  the  Government, 
or  while  the  same  shall  remain  inalienable  by  the  allottee 
without  the  consent  of  the  United  States,  shall  be  fined 
not  more  than  five  hundred  dollars,  or  imprisoned  not 
more  than  one  year,  or  both.  (R.  S.,  s.  5388.  3  Mar.,  1875, 
18  Stat.  L.,  381,  c.  451,  s.  1;  Supp.,  91.  4  June,  1888,  25 
'Stat.  v.  L.,  166,  c.  340;  1  Supp.,  588.  25  June,  1910,  36 
Stat.  L.,  857,  c.  431,  s.  6.) 

§  51.  Boxing,  etc.,  timber  on  public  lands  for  turpen- 
tine, etc. — Whoever  shall  cut,  chip,  chop,  or  box  any  tree 
upon  any  lands  belonging  to  the  United  States,  or  upon 
any  lands  covered  by  or  embraced  in  any  unperfected 


780  Federal  Criminal  Law  Procedure. 

settlement,  application,  filing,  entry,  selection,  or  loca- 
tion, made  under  any  law  of  the  United  States,  for  the 
purpose  of  obtaining  from  such  tree  any  pitch,  turpen- 
tine, or  other  substance,  or  shall  knowingly  encourage, 
cause,  procure,  or  aid  in  the  cutting,  chipping,  chopping, 
or  boxing  of  any  such  tree,  or  shall  buy,  trade  for,  or  in 
any  manner  acquire  any  pitch,  turpentine,  or  other  sub- 
stance, or  any  article  or  commodity  made  from  any  such 
pitch  turpentine,  or  other  substance,  when  he  has  knowl- 
edge that  the  same  has  been  so  unlawfully  obtained  from 
such  trees,  shall  be  fined  not  more  than  five  hundred 
dollars,  or  imprisoned  not  more  than  one  year,  or  both. 
(4  June,  1906,  34  Stat.  L.,  208,  c.  2571.) 

§  52.  Setting  fire  to  timber  on  public  lands. — Who- 
ever shall  wilfully  set  on  fire,  or  cause  to  be  set  on  fire, 
any  timber,  underbrush,  or  grass  upon  the  public  do- 
main, or  shall  leave  or  suffer  fire  to  burn  unattended 
near  any  timber  or  other  inflammable  material,  shall  be 
fined  not  more  than  five  thousand  dollars,  or  imprisoned 
not  more  than  two  years,  or  both.  (  24  Feb.,  1897,  29 
Stat.  L.,  594,  c.  313,  s.  1;  2  Supp.,  562,  5  Mav,  1900,  31 
Stat.  L.,  169  c.  349;  2  Supp.,  1163.) 

§  53.  Failing  to  extinguish  fires. — Whoever  shall  build 
a  fire  in  or  near  any  forest,  timber,  or  other  inflammable 
material  upon  the  public  domain,  or  upon  any  Indian 
reservation,  or  lands  belonging  to  or  occupied  by  any 
tribe  of  Indians  under  the  authority  of  the  United  States, 
or  upon  any  Indian  allotment  while  the  title  to  the 
same  shall  be  held  in  trust  by  the  Government,  or  while 
the  same  shall  remain  inalienable  by  the  allottee  without 
the  consent  of  the  United  States,  shall,  before  leaving 
said  fire,  totally  extinguish  the  same;  and  whoever  shall 
fail  to  do  so  shall  be  fined  not  more  than  one  thousand 
dollars,  or  imprisoned  not  more  than  one  year,  or  both. 
(24  Feb.,  1897,  29  Stat.  L.,  594,  c.  313,  s.  2;  2  Supp.,  562. 
5  May,  1900,  31  Stat.  L.,  170,  c.  349,  s.  2;  2  Supp.,  1163. 
25  June,  1910,  36  Stat.  L.,  857,  c.  431,  s.  6.) 

§  54.  Fines  to  be  paid  into  school  fund. — In  all  cases 
arising  under  the  two  preceding  sections  the  fines  col- 
lected shall  be  paid  into  the  public  school  fund  of  the 
county  in  which  the  lands  where  the  offense  was  commit- 


Offenses  Against  the  Operation  of  Goveenment.  781 

ted  are  situated.  (24  Feb.,  1897,  29  Stat.  L.,  594,  c.  313, 
s.  3;  2  Supp.,  562,  5  May,  1900,  31  Stat.  L.,  170,  c.  349,  s. 
3,  2  Supp.,  1163.) 

§  55.  Trespassing  on  Bull  Run  National  Forest,  Ore- 
gon.— Whoever,  except  forest  rangers,  and  other  persons 
employed  by  the  United  States  to  protect  the  forest, 
federal  and  state  officers  in  the  discharge  of  their  duties, 
and  the  employees  of  the  water  board  of  the  city  of  Port- 
land, State  of  Oregon,  shall  knowingly  trespass  upon  any 
part  of  the  reserve  known  as  Bull  Run  National  Forest, 
in  the  Cascade  Mountains,  in  the  State  of  Oregon,  or  shall 
enter  thereon  for  the  purpose  of  grazing  stock,  or  shall 
engage  in  grazing  stock  thereon,  or  shall  permit  stock 
of  any  kind  to  graze  thereon,  shall  be  fined  not  more  than 
five  hundred  dollars,  or  imprisoned  not  more  than  six 
months  or  both.     (28  Apr.,  1904,  33  Stat.  L.,  526,  c.  1774.) 

§  56.  Breaking  fence  or  gate  inclosing  reserved  lands, 
or  driving  or  permitting  live  stock  to  enter  upon. — Who- 
ever shall  knowingly  and  unlawfully  break,  open,  or 
destroy  any  gate,  fence,  hedge,  or  wall  inclosing  any  lands 
of  the  United  States  which,  in  pursuance  of  any  law,  have 
been  reserved  or  purchased  by  the  United  States  for  any 
public  use;  or  whoever  shall  drive  any  cattle,  horses, 
hogs,  or  other  live  stock  upon  any  such  lands  for  the 
purpose  of  destroying  the  grass  or  trees  on  said  lands, 
or  where  they  may  destroy  the  said  grass  or  trees;  or 
whoever  shall  knowingly  permit  his  cattle,  horses,  hogs, 
or  other  live  stock,  to  enter  through  any  such  inclosure 
upon  any  such  lands  of  the  United  States,  where  such 
cattle,  horses,  hogs,  or  other  live  stock  may  or  can  destroy 
the  grass  or  trees  or  other  property  of  the  United  States 
on  the  said  lands  shall  be  fined  not  more  than  five  hun- 
dred dollars  or  imprisoned  not  more  than  one  year,  or 
both:  Provided,  That  nothing  in  this  section  shall  be  con- 
strued to  apply  to  unreserved  public  lands.  (3  Mar., 
1875,  18  Stat.  L.,  481,  c.  151,  ss.  2,  3;  1  Supp.,  91.) 

§  57.  Injuring  or  removing  posts  or  monuments. — 
Whoever  shall  willfully  destroy,  deface,  change,  or  re- 
move to  another  place  any  section  corner,  quarter-section 
corner,  or  meander  post,  on  any  Government  line  of  sur- 
vey, or  shall  willfully  cut  down  any  witness  tree  or  any 


782  Federal  Criminal  Law  Procedure. 

tree  blazed  to  bark  the  line  of  a  Government  survey,  or 
shall  willfully  deface  change,  or  remove  any  monument 
or  bench  mark  of  any  Government  survey,  shall  be  fined 
not  more  than  two  hundred  and  fifty  dollars,  or  impris- 
oned not  more  than  six  months,  or  both.  (10  June,  1896, 
29  Stat.  L.,  343,  c.  398;  2  Supp.,  516.) 

§  58.  Interrupting  surveys. — Whoever  in  any  manner, 
by  threats  or  force,  shall  interrupt,  hinder,  or  prevent 
the  surveying  of  the  public  lands,  or  of  any  private  land 
claim  which  has  been  or  may  be  confirmed  by  the  United 
States,  by  the  persons  authorized  to  survey  the  same,  in 
conformity  with  the  instructions  of  the  Commissioner  of 
the  General  Land  Office,  shall  be  fined  not  more  than  three 
thousand  dollars  and  imprisoned  not  more  than  three 
years.     (R.  S.,  s.  2412.) 

§  59.  Agreement  to  prevent  bids  at  sale  of  lands. — 
Whoever,  before  or  at  the  time  of  the  public  sale  of  any 
of  the  lands  of  the  United  States,  shall  bargain,  contract, 
or  agree,  or  attempt  to  bargain,  contract,  or  agree  with 
any  other  person,  that  the  last-named  person  shall  not 
bid  upon  or  purchase  the  land  so  offered  for  sale,  or 
any  parcel  thereof;  or  whoever  by  intimidation,  combina- 
tion, or  unfair  management  shall  hinder  or  prevent,  or 
attempt  to  hinder  or  prevent,  any  person  from  bidding 
upon  or  purchasing  any  tract  of  land  so  offered  for  sale, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  im- 
prisoned not  more  than  two  years,  or  both.  (R.  S.,  s. 
2373.) 

§  60.  Injuries  to  United  States  telegraph,  etc.,  lines. 
— Whoever  shall  willfully  or  or  maliciously  injure  or 
destroy  any  of  the  works,  property,  or  material  of  any 
telegraph,  telephone,  or  cable  line,  or  system,  operated 
or  controlled  by  the  United  States,  whether  constructed, 
or  in  process  of  construction,  or  shall  willfully  or  malici- 
ously interfere  in  any  way  with  the  working  or  use  of 
any  such  line,  or  system,  or  shall  willfully  or  malicious- 
ly obstruct,  hinder,  or  delay  the  transmission  of  any  com- 
munication over  any  such  line,  or  system,  shall  be  fined 
not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  three  years,  or  both.  (23  June,  1874,  18 
Stat.  L.,  250  c.  461;  1  Supp.,  46.) 


Offenses  Against  the  Operation  of  Government.  783 

§  61.  Counterfeiting  weather  forecast. — Whoever  shall 
knowingly  issue  or  publish  any  counterfeit  weather  fore- 
cast or  warning  of  weather  conditions  falsely  represent- 
ing such  forecast  or  warning  to  have  been  issued  or 
published  by  the  Weather  Bureau,  United  States  Signal 
Service,  or  other  branch  of  the  Government  service,  shall 
be  fined  not  more  than  five  hundred  dollars,  or  impris- 
oned not  more  than  ninety  days,  or  both.  (8  Aug.,  1894, 
28  Stat.  L.,  274,  c.  238;  2  Supp.,  233.  2  Mar.,  1895,  28 
Stat.  L.,  737,  c.  169;  2  Supp.,  406.  25  Apr.,  1896,  29  Stat. 
L.,  108,  c.  140;  2  Supp.,  459.) 

§  62.  Interfering  with  employees  of  Bureau  of  Animal 
Industry;  penalty. — Whoever  shall  forcibly  assault,  re- 
sist, oppose,  prevent,  impede,  or  interfere  with  any  of- 
ficer or  employee  of  the  Bureau  of  Animal  Industry  of 
the  Department  of  Agriculture  in  the  execution  of  his 
duties,  or  on  account  of  the  execution  of  his  duties,  shall 
be  fined  not  more  than  one  thousand  dollars,  or  impris- 
oned not  more  than  one  year,  or  both;  and  whoever  shall 
use  any  deadly  or  dangerous  weapon  in  resisting  any  of- 
ficer or  employee  of  the  Bureau  of  Animal  Industry  of  the 
Department  of  Agriculture  in  the  execution  of  his  duties, 
with  intent  to  commit  a  bodily  injury  upon  him  or  to 
deter  or  prevent  him  from  discharging  his  duties,  or  on 
account  of  the  performance  of  his  duties,  shall  be  fined 
not  more  than  one  thousand  dolars,  or  imprisoned  not 
more  than  five  years,  or  both.  (3  Mar.,  1905,  33  Stat. 
L.,  1265,  c.  1496,  s.  5.) 

§  63.  Forgery  of  certificate  of  entry. — Whoever  shall 
forge,  counterfeit,  or  falsely  alter  any  certificate  of  entry 
made  or  required  to  be  made  in  pursuance  of  law  by 
an  officer  of  the  customs,  or  shall  use  any  such  forged, 
counterfeited,  or  falsely  altered  certificate,  knowing  the 
same  to  be  forged,  counterfeited,  or  falsely  altered,  shall 
be  fined  not  more  than  ten  thousand  dollars  and  impris- 
oned not  more  than  three  years.     (R.  S.,  s.  5417.) 

§  64.     Concealment  of  destruction  or  invoices,  etc. — 

Whoever  shall  willfully  conceal  or  destroy  any  invoice, 

,book,   or  paper  relating  to   any  merchandise   liable  to 

.duty,  which  has  been  or  may  be  imported  into  the  United 

States  from  any  foreign  port  or  country,  after  an  in- 


784  Federal  Criminal  Law  Procedure. 

spection  thereof  has  been  demanded  by  the  collector  of 
any  collection  district,  or  shall  at  any  time  conceal  or  dis- 
troy  any  such  invoice,  book,  or  paper  for  the  purpose  of 
suppressing  any  evidence  of  fraud  therein  contained, 
shall  be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  two  years,  or  both.  (R.  S.,  s. 
5443.) 

§  65.  Resisting  revenue  officers;  rescuing  or  destroy- 
ing seized  property,  etc. — Whoever  shall  forcibly  assault, 
resist,  oppose,  prevent,  impede,  or  interfere  with  any  of- 
ficer of  the  customs  or  of  the  internal  revenue  or  his 
deputy,  or  any  person  assisting  him  in  the  execution  of 
his  duties,  or  any  person  authorized  to  make  searches 
and  seizures,  in  the  execution  of  his  duty,  or  shall  res- 
cue, attempt  to  rescue,  or  cause  to  be  rescued,  any  prop- 
erty which  has  been  seized  by  any  person  so  authorized; 
or  whoever  before,  at,  or  after  such  seizure,  in  order  to 
prevent  the  seizure  or  securing  of  any  goods,  wares, 
or  merchandise  by  any  person  so  authorized,  shall 
stave,  break,  throw  overboard,  destroy,  or  remove 
the  same,  shall  be  fined  not  more  than  two  thou- 
sand dollars,  or  imprisoned  not  more  than  one  year, 
or  both;  and  whoever  shall  use  any  deadly  or 
dangerous  weapon  in  resisting  any  person  authorized 
to  make  searches  or  seizures,  in  the  execution  of  his  duty, 
with  intent  to  commit  a  bodily  injury  upon  him  or  to 
deter  or  prevent  him  from  discharging  his  duty,  shall 
be  imprisoned  not  more  than  ten  years.     (R.  S.,  s.  5447.) 

5  66.  Falsely  assuming  to  be  a  revenue  officer. — Who- 
ever shall  falsely  represent  himself  to  be  a  revenue  officer, 
and,  in  such  assumed  character,  demand  or  receive  any 
money  or  other  article  of  value  from  any  person  for  any 
duty  or  tax  due  to  the  United  States,  or  for  any  violation 
or  pretended  violation  of  any  revenue  law  of  the  United 
States,  shall  be  fined  not  more  than  five  hundred  dollars 
and  imprisoned  not  more  than  two  years.  (R.  S.,  s.  5448. 
U.  S.  v.  Brown,  119  Fed.  Rep.,  482,  U.  S.  v.  Farnham, 
127  Fed.' Rep.,  478.) 

§  67.  Offering  presents  to  revenue  officers. — Whoever, 
being  engaged  in  the  importation  into  the  United  States 
of  any  goods,  wares,  or  merchandise,  or  being  interested 


Offenses  Against  the  Operation  of  Government.  785 

as  principal,  clerk,  or  agent  in  the  entry  of  any  goods, 
wares,  or  merchandise,  shall  at  any  time  make,  or  offer 
to  make,  to  any  officer  of  the  revenue,  any  gratutity  or 
present  of  money  or  other  thing  of  value,  shall  be  fined 
not  more  than  five  thousand  dollars,  or  imprisoned  not 
more  than  two  years,  or  both.     (R.  S.,  s.  5452.) 

§  68.  Admitting  merchandise  to  entry  for  less  than 
legal  duty. — Whoever,  being  an  officer  of  the  revenue, 
shall,  by  any  means  whatever,  knowingly  admit  or  aid 
in  admitting  to  entry,  any  goods,  wares,  or  merchandise, 
upon  payment  of  less  than  the  amount  of  duty  legally 
due  thereon,  shall  be  removed  from  office  and  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  two  years,  or  both.     (E.  S.,  s.  5444.) 

U.  S.  v.  Mescall,  164  Fed.  Rep.,   584. 

§  69.  Securing  entry  of  merchandise  by  false 
samples,  etc. — Whoever,  by  any  means  whatever,  shall 
knowingly  effect,  or  aid  in  effecting,  any  entry  of  goods, 
wares,  or  merchandise,  at  less  than  the  true  weight  or 
measure  thereof,  or  upon  a  false  classification  thereof 
as  to  quality  or  value,  or  by  the  payment  of  less  than  the 
amount  of  duty  legally  due  thereon,  shall  be  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  two  years,  or  both.     (R.  S.,  s.  5445.) 

U.  S.  v.  Rosenthal,  126  Fed.  Rep.,  766. 

§  70.  False  certification  by  consular  officers. — Who- 
ever, being  a  consul,  or  vice-consul,  or  other  person  em- 
ployed in  the  consular  service  of  the  United  States,  shall 
knowingly  certify  falsely  to  any  invoice,  or  other  paper, 
to  which  his  certificate  is  by  law  authorized  or  required, 
shall  be  fined  not  more  than  ten  thousand  dollars  and  im- 
prisoned not  more  than  three  years.     (R.  S.,  s.  5442.) 

§  71.  Taking  seized  property  from  custody  of  revenue 
officer. — Whoever  shall  dispossess  or  rescue,  or  attempt 
to  dispossess  or  rescue,  any  property  taken  or  detained 
by  any  officer  or  other  person  under  the  authority  of  any 
revenue  law  of  the  United  States,  or  shall  aid  or  assist 
therein,  shall  be  fined  not  more  than  three  hundred  dol- 
lars and  imprisoned  not  more  than  one  year.  (R.  S.,  s. 
5446.) 

50 


786  Federal  Criminal  Law  Procedure. 

§  72.  Forging  or  altering  ship's  papers  or  custom- 
house documents. — Whoever  shall  falsely  make,  forge, 
counterfeit,  or  alter  any  instrument  in  imitation  of,  or 
purporting  to  be,  an  abstract  or  official  copy  or  certificate 
of  the  recording,  registry  or  enrollment  of  any  vessel, 
in  the  office  of  any  collector  of  the  customs,  or  a  license 
to  any  vessel  for  carrying  on  the  coasting  trade  or  fish- 
eries of  the  United  States,  or  a  certificate  of  ownership, 
pass,  passport,  sea  letter,  or  clearance,  granted  for  any 
vessel,  under  the  authority  of  the  United  States,  or  a 
permit,  debenture,  or  other  official  document  granted 
by  any  collector  or  other  officer  of  the  customs  by  virtue 
of  his  office;  or  whoever  shall  utter,  publish,  or  pass,  or 
attempt  to  utter,  publish,  or  pass,  as  true,  any  such  false, 
forged,  counterfeited,  or  falsely  altered  instrument,  ad- 
stract,  official  copy,  certificate,  license,  pass,  passport,  sea 
letter,  clearance,  permit,  debenture  or  other  official  docu- 
ment herein  specified,  knowing  the  same  to  be  false,  forged, 
counterfeited,  or  falsely  altered,  with  an  intent  to  de- 
fraud, shall  be  fined  not  more  than  one  thousand  dollars 
and  imprisoned  not  more  than  three  years.  (R.  S.,  s. 
5423.) 

§  73.  Forging  military  bounty-land  warrant,  etc. — 
Whoever  shall  falsely  make,  alter,  forge,  or  counter- 
feit any  military  bounty-land  warrant,  or  military  bounty- 
land  warrant  certificate,  issued  or  purporting  to  have 
been  issued  by  the  Commissioner  of  Pensions  under  any 
law  of  Congress,  or  any  certificate  or  duplicate  certificate 
of  location  of  any  military  bounty-land  warrant,  or  mili- 
tary bounty-land  warrant  certificate  upon  any  of  the 
lands  of  the  United  States,  or  any  certificate  or  duplicate 
certificate  of  the  purchase  of  any  of  the  lands  of  the 
United  States,  or  any  receipt  or  duplicate  receipt  for 
the  purchase  money  of  any  of  the  lands  of  the  United 
States,  issued  or  purporting  to  have  been  issued  by  the 
register  and  receiver  at  any  land  office  of  the  United 
States  or  by  either  of  them;  or  whoever  shall  utter,  pub- 
lish, or  pass  as  true,  any  such  false,  forged,  or  counter- 
feited military  bounty-land  warrant,  military  bounty- 
land  warrant  certificate,  certificate  or  duplicate  certificate 
of  location,  certificate  or  duplicate  certificate  of  purchase. 


Offenses  Against  the  Operation  of  Government.  787 

receipt  or  duplicate  receipt  for  the  purchase  money  of 
any  of  the  lands  of  the  United  States,  knowing  the  same 
to  be  false,  forged,  or  counterfeited,  shall  be  imprisoned 
not  more  than  ten  years.     (R.  S.,  s.  5420.) 

§  74.  Forging,  etc.,  certificate  of  citizenship. — Who- 
ever shall  falsely  make,  forge,  or  counterfeit,  or  cause  or 
procure  to  be  falsely  made,  forged,  or  counterfeited,  or 
shall  knowingly  aid  or  assist  in  falsely  making,  forging, 
or  counterfeiting  any  certificate  of  citizenship,  with  in- 
tent to  use  the  same,  or  with  the  intent  that  the  same  may 
be  used  by  some  other  person,  shall  be  fined  not  more  than 
ten  thousand  dollars,  or  imprisoned  not  more  than  ten 
years,  or  both.  (29  June,  1906,  34  Stat.  L.,  602,  c.  3592, 
s.  16.) 

§  75.  Engraving,  etc.,  plate  for  printing,  or  photo- 
graphing, selling,  or  bringing  into  United  States,  etc., 
certificate  of  citizenship,  etc. — Whoever  shall  engrave,  or 
cause  or  procure  to  be  engraved,  or  assist  in  engraving, 
any  plate  in  the  likeness  of  any  plate  designed  for  the 
printing  of  a  certificate  of  citizenship;  or  whoever  shall 
sell  any  such  plate,  or  shall  bring  into  the  United  States 
from  any  foreign  place  any  such  plate,  except  under  the 
direction  of  the  Secretary  of  Commerce  and  Labor  or 
other  proper  officer ;  or  whoever  shall  have  in  his  control, 
custody,  or  possession  any  metallic  plate  engraved  after 
the  similitude  of  any  plate  from  which  any  such  certifi- 
cate has  been  printed,  with  intent  to  use  or  to  suffer  such 
plate  to  be  used  in  forging  or  counterfeiting  any  such 
certificate  or  any  part  thereof;  or  whoever  shall  print, 
photograph,  or  in  any  manner  cause  to  be  printed,  photo- 
graphed, made,  or  executed,  any  print  or  impression  in 
the  likeness  of  any  such  certificate,  or  any  part  thereof; 
or  whoever  shall  sell  any  such  certificate,  or  shall  bring 
the  same  into  the  United  States  from  any  foreign  place, 
except  by  direction  of  some  proper  officer  of  the  United 
States;  or  whoever  shall  have  in  his  possession  a  dis- 
tinctive paper  which  has  been  adopted  by  the  proper 
officer  of  the  United  States  for  the  printing  of  such 
certificate,  with  intent  unlawfully  to  use  the  same,  shall 
be  fined  not  more  than  ten  thousand  dollars,  or  imprisoned 
not  more  than  ten  years,  or  both.  (29  June,  1906,  34 
Stat.  L.,  602,  c.  3592,  s.  17.) 


788  Federal  Criminal  Law  Procedure. 

§  76.  False  personation,  etc.,  in  procuring  naturali- 
zation.— Whoever,  when  applying  to  be  admitted  a  citi- 
zen, or  when  appearing  as  a  witness  for  any  such  person, 
shall  knowingly  personate  any  person  other  than  him- 
self, or  shall  falsely  appear  in  the  name  of  a  deceased 
person,  or  in  an  assumed  or  fictitious  name;  or  whoever 
shall  falsely  make,  forge,  or  counterfeit  any  oath,  notice, 
affidavit,  certificate,  order,  record,  signature,  or  other 
instrument,  paper,  or  proceeding  required  or  authorized 
by  any  law  relating  to  or  providing  for  the  naturalization 
of  aliens;  or  whoever  shall  utter,  sell,  dispose  of,  or  shall 
use  as  true  or  genuine,  for  any  unlawful  purpose,  any 
false,  forged,  antedated,  or  counterfeit  oath,  notice,  cer- 
tificate, order,  record,  signature,  instrument,  paper,  or 
proceeding  above  specified;  or  whoever  shall  sell  or  dis- 
pose of  to  any  person  other  than  the  person  for  whom 
it  was  originally  issued  any  certificate  of  citizenship  or 
certificate  showing  any  person  to  be  admitted  a  citizen, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  im- 
prisoned not  more  than  five  years,  or  both.  (R.  S.,s. 
5424.) 

U.   S.  v.   York,  131   Fed.  Rep.,   323;   U. 
S.   v.  Raisch,   144  Fed.  Rep.,  486. 

§  77.  Using  false  certificate  of  citizenship,  or  deny- 
ing citizenship,  etc. — Whoever  shall  use  or  attempt  to 
use,  or  shall  aid,  assist,  or  participate  in  the  use  of  any 
certificate  of  citizenship,  knowing  the  same  to  be  forged, 
counterfeit,  or  antedated,  or  knowing  the  same  to  have 
been  procured  by  fraud  or  otherwise  unlawfully  ob- 
tained; or  whoever,  without  lawful  excuse,  shall  know- 
ingly possess  any  false,  forged,  antedated,  or  counter- 
feit certificate  of  citizenship  purporting  to  have  been 
issued  under  any  law  of  the  United  States  relating  to 
naturalization,  knowing  such  certificate  to  be  false, 
forged,  antedated,  or  counterfeit,  with  the  intent  un- 
lawfully to  use  the  same;  or  whoever  shall  obtain,  ac- 
cept, or  receive  any  certificate  of  citizenship,  knowing 
the  same  to  have  been  procured  by  fraud  or  by  the  use 
or  means  of  any  false  name  or  statement  given  or  made 
with  the  intent  to  procure,  or  to  aid  in  procuring,  the 
issuance  of  such  certificate,  or  knowing  the  same  to  have 


Offenses  Against  the  Operation  of  Government,,  789 

been  fraudulently  altered  or  antedated;  or  whoever, 
without  lawful  excuse,  shall  have  in  his  possession  any 
blank  certificate  of  citizenship  provided  "by  the  Bureau 
of  Immigration  and  Naturalization  with  the  intent  un- 
lawfully to  use  the  same;  or  whoever,  after  having  been 
admitted  to  be  a  citizen,  shall,  on  oath  or  by  affidavit, 
knowingly  deny  that  he  has  been  so  admitted,  with  the  in- 
tent to  evade  or  avoid  any  duty  or  liability  imposed 
or  required  by  law,  shall  be  fined  not  more  than  one 
thousand  dollars,  or  imprisoned  not  more  than  fiveNyears, 
or  both.  (R.  S.,  s.  5425.  29  June,  1906,  34  Stat.  L.,  602, 
c.  3592,  s.  19.) 

U.    S.   v.    Melfi,    118   Fed.   Rep.,   899. 

§  78.  Using  false  certificate,  etc.,  as  evidence  of  right 
to  vote,  etc. — Whoever  shall  in  any  manner  use,  for  the 
purpose  of  registering  as  a  voter,  or  as  evidence  of  a 
right  to  vote,  or  otherwise  unlawfully,  any  order,  cer- 
tificate of  citizenship,  or  certificate,  judgment,  or  ex- 
emplification, showing  any  person  to  be  admitted  to  be 
a  citizen,  whether  heretofore  or  hereafter  issued  or  made, 
knowing  that  such  order,  certificate,  judgment,  or  ex- 
emplification has  been  unlawfully  issued  or  made;  or 
whoever  shall  unlawfully  use,  or  attempt  to  use,  any 
such  order  or  certificate,  issued  to  or  in  the  name  of  any 
other  person,  or  in  a  fictitious  name  or  the  name  of  a 
deceased  person,  shall  be  fined  not  more  than  one  thou- 
sand dollars,  or  imprisoned  not  more  than  five  years,  or 
both.     (R.  S.,  s.  5426.) 

U.  S.  v.  Burley,  14  Blatch,  91,  24  Feci. 
Cas.,  1.101;  U.  S.  v.  Lehman,  39  Fed. 
Rep..  768. 

§  79.  Falsely  claiming  citizenship. — Whoever  shall 
knowingly  use  any  certificate  or  naturalization  hereto- 
fore or  which  hereafter  may  be  granted  by  any  court, 
which  has  been  or  may  be  procured  through  fraud 
by  false  evidence,  or  which  has  been  or  may  hereafter 
be  issued  by  the  clerk  of  any  other  officer  of  the  court 
without  any  appearance  and  hearing  of  the  applicant 
in  court  and  without  lawfull  authority;  or  whoever,  for 
any  fraudulent  purpose  whatever,  shall  falsely  represent 
himself  to  be  a  citizen  of  the  United  States  without  hav- 
ing been  duly  admitted  to  citizenship,  shall  be  fined  not 


790  Federal  Criminal  Law  Procedure. 

more  than  one  thousand  dollars,  or  imprisoned  not  more 
than  two  years,  or  both.     (R.  S.,  s.  5428.) 

Green,  v.  U.   S.,  ISO  Fed.  Rep.,   560. 
U.   S.  v.   Hamilton,   157   Fed.   Rep.,   569. 

§  80.  Taking  false  oath  in  naturalization. — Whoever, 
in  any  proceeding  under  or  by  virtue  of  any  law  relat- 
ing to  the  naturalization  of  aliens,  shall  knowingly  swear 
falsely  in  any  case  where  an  oath  is  made  or  affidavit 
taken,  shall  be  fined  not  more  than  one  thousand  dollars 
and  imprisoned  not  more  than  five  years.  (R.  S.,  s.  5395.) 

Schmidt  v.  U.  S.,  133  Fed.  Rep.,  257; 
Boren  v.  U.  S.,  144  Fed.  Rep.,  801; 
Moon   v.    U.    S.,    144    Fed.   Rep.,   962. 

§  81.  Provisions  applicable  to  all  courts  of  naturali- 
zation.— The  provisions  of  the  five  sections  last  preced- 
ing shall  apply  to  all  proceedings  had  or  taken,  or  attempt- 
ed to  be  had  or  taken,  before  any  court  in  which  any  pro- 
ceeding for  naturalization  may  be  commenced  or  at- 
tempted to  be  commenced,  and  whether  sucli  court  was 
vested  by  law  with  jurisdiction  in  naturalization  pro- 
ceedings or  not.     (R.  S.,  s.  5429.) 

§  82.  Shanghaiing,  and  falsely  inducing  persons  in- 
toxicated to  go  on  vessel  prohibited. — Whoever,  with  in- 
tent that  any  person  shall  perform  service  or  labor  of 
any  kind  on  board  of  any  vessel  engaged  in  trade  and 
commerce  among  tlie  several  States  or  with  foreign  na- 
tions, or  on  board  of  any  vessel  of  the  United  States 
engaged  in  navigating  the  high  seas  or  any  navigable 
water  of  the  United  States,  shall  procure  or  induce,  or 
attempt  to  procure  or  induce,  another,  by  force  or 
threats,  or  by  representation  which  he  knows  or  believes 
to  be  untrue,  or  while  the  person  so  procured  or  induced 
is  intoxicated  or  under  the  influence  of  any  drug,  to  go 
on  board  of  any  such  vessel,  or  to  sign  or  in  any  wise  enter 
into  any  agreement  to  go  on  board  of  any  such  vessel 
to  perform  service  or  labor  thereon;  or  whoever  shall 
knowingly  detain  on  board  of  any  such  vessel  any  per- 
son so  procured  or  induced  to  go  on  board  thereof,  or 
to  enter  into  any  agreement  to  go  on  board  thereof,  by 
any  means  herein  defined;  or  whoever  shall  knowingly 
aid  or  abet  in  the  doing  of  any  of  the  things  herein  made 
unlawful,  shall  be  fined  not  more  than  one  thousand  dol- 


Offenses  Against  the  Operation  of  Government.  791 

lars,  or  imprisoned  not  more  than  one  year,  or  both.  (28 
June  1906,  34  Stat.  L.,  551,  c.  3583.  2  Mar.,  1907,  34  Stat. 
L.,  1233,  c.  2539.) 

§  83.  Corporations,  etc.,  not  to  contribute  money  for 
political  elections,  etc. — It  shall  be  unlawful  for  any 
national  bank,  or  any  corporation  organized  by  author- 
ity of  any  law  of  Congress,  to  make  a  money  contribu- 
tion in  connection  with  any  election  to  any  political  of- 
fice. It  shall  also  be  unlawful  for  any  corporation  what- 
ever to  make  a  money  contribution  in  connection  with 
any  election  at  which  Presidential  and  Vice-Presidential 
electors  or  a  Representative  in  Congress  is  to  be  voted 
for,  or  any  election  by  any  state  legislature  of  a  United 
States  Senator.  Every  corporation  which  shall  make 
any  contribution  in  violation  of  the  foregoing  provisions 
shall  be  fined  not  more  than  five  thousand  dollars;  and 
every  officer  or  director  of  any  corporation  who  shall 
consent  to  any  contribution  by  the  corporation  in  viola- 
tion of  the  foregoing  provisions  shall  be  fined  not  more 
than  one  thousand  dollars,  or  imprisoned  not  more  than 
one  year,  or  both.    (26  Jan.,  1907,  34  Stat.  L.,  864,  c.  420.) 

§  84.  Hunting  birds,  or  taking  their  eggs  from  breed- 
ing grounds  prohibited. — Whoever  shall  hunt,  trap  cap- 
ture, wilfully  disturb,  or  kill  any  bird  of  any  kind  what- 
ever, or  take  the  eggs  of  any  such  bird,  on  any  lands 
of  the  United  States  which  have  been  set  apart  or  re- 
served as  breeding  grounds  for  birds,  by  any  law,  proc- 
lamation, or  Executive  order,  except  under  such  rules 
and  regulations  as  the  Secretary  of  Agriculture  may, 
from  time  to  time,  prescribe,  shall  be  fined  not  more  than 
five  hundred  dollars,  or  imprisoned  not  more  than  six 
months,  or  both.  (28  June,  1906,  34  Stat.  L.,  536,  c.  3565.) 


CHAPTER    FIVE. 

OFFENSES  RELATING  TO  OFFICIAL  DUTIES. 

§  85.  Officer,  etc.,   of  the   United   States  guilty   of   extortion. 

86.  Receipting  for  larger  suras  than  are  paid. 

87.  Disbursing  officer  unlawfully  converting,  etc.,  public  money. 

88.  Failure  of  treasurer,  etc.,  to  safely  keep  public  money. 

89.  Custodian  of  public  money  failing  to  safely  keep,  etc. 

90.  Failure  of  officer  to  render  accounts,  etc. 

91.  Failure  to  deposit  as  required. 

92.  Provisions  of  the  five   preceding  sections,  to  whom  applicable. 
■93.  Record  evidence  of  embezzlement. 

'94.  Prima  facie  evidence. 

95.  Evidence  of  conversion. 

96.  Banker,  etc.,  receiving  deposit  from  disbursing  officer. 

97.  Embezzlement  by  Internal  Revenue  officer,  etc. 

98.  Officer  contracting  beyond   specific  appropriation. 

99.  Officer  of  United  States  court  failing  to  deposit  moneys,  etc. 

100.  Receiving  loan  or  deposit  from  officer  of  court. 

101.  Failure  to  make  returns  or  reports. 

102.  Aiding  in  trading  in  obscene  literature,  etc. 

103.  Collecting  and  disbursing  officers  forbidden  to  trade  in  public 

property. 

104.  Certain  officers  forbidden  to  purchase,  etc.,  witness,  etc.,  fees. 

105.  Falsely  certifying,  etc.,  as  to  record   of  deeds,  etc. 

106.  Other  false  certificates. 

107.  Inspector  of  steamboats  receiving  illegal  fees. 

108.  Pension  agent  taking  fee,  etc. 

109.  Officer  not  to  be  interested  in  claims  against  United  States. 

110.  Members   of   Congress,    etc.,   solicting   or   accepting   bribe,   etc. 

111.  Offering,  etc.,  Member  of  Congress  bribe,  etc. 

112.  Member   of  Congress   taking  consideration  for   procuring  con- 
tract, office,  etc.;    offering  Member  consideration,  etc. 

113.  Member  of  Congress,  etc.,  taking  compensation  in  matters  to 

which  United  States  is  a  party. 

111.  Members  of  Congress  not  to  be  interested  in  contract. 

115.  Officer  making  contract  with  Member  of  Congress. 

116.  Contracts  to  which  two  preceding  sections  do  not  apply. 

117.  United    States   officer  accepting  bribe. 

118.  Political   contributions  not  to  be  solicted  by  certain  officers. 

119.  Political  contributions  not  to  be  received  in  public  offices. 

120.  immunity  from  official  proscription. 

121.  Giving  money  to  officials  for  political  purposes  prohibited. 
l-_  Penalty    for    violating   provisions    of    four    preceding    sections. 

(792) 


Offenses  Eelating   to  Official  Duties.        793 

123.  Government   officer,    etc.,   giving   out   advance    information    re- 

specting crop  reports. 

124.  Government  officer,  etc.,  knowingly  compiling  or  issuing  false 

statistics    respecting    crops. 

§  85.  Officer,  etc.,  of  the  United  States  guilty  of  ex- 
tortion.— Every  officer,  clerk,  agent,  or  employe  of  the 
United  States,  and  every  person  representing  himself 
to  be  or  assuming  to  act  as  such  officer,  clerk,  agent,  or 
employee,  who,  under  color  of  his  office,  clerkship,  agen- 
cy, or  employment,  or  under  color  of  his  pretended  or 
assumed  office,  clerkship,  agency,  or  employment,  is 
guilty  of  extortion,  and  every  person  who  shall  attempt 
any  act  which  if  performed  would  make  him  guilty  of 
extortion,  shall  be  fined  not  more  than  five  hundred  dol- 
lars, imprisoned  not  more  than  one  year,  or  both.  (R. 
S.,  s.  5481.    28  June,  1906,  34  Stat.  L.,  546,  c.  3574.) 

Williams    v.    U.    S.,    168    U.    S.,    382;  v.    Harned,    3    Fed.    Rep.,    376;    U.    S.    v. 

Ogden     v.     Maxwell,     3     Blatch.     319,     18  Deaver,  14  Fed.  Rep.,  595;  U.  S.  v.  More, 

Fed.   Cas.,  613;   U.   S.  v.   Carr,  3   Sawyer,  18    Fed.    Rep.,    696;    U.    S.   v.    Schlierholz, 

302,  25    Fed.   Cas.,   3U3.     U.   S.   v.   Waitz,  133    Fed.    Rep.,    333;    137    Fed.    Rep.,   616. 
3    Sawyer,    473,   28   Fed.   Cas.,   386;   U.    S. 

§  86.  Receipting  for  larger  sums  than  are  paid.- 
Whoever,  being  an  officer,  clerk,  agent,  employee,  or 
other  person  charged  with  the  payment  of  any  appro- 
priation made  by  Congress,  shall  pay  to  any  clerk  or 
other  employee  of  the  United  States  a  sum  less  than  that 
provided  by  law,  and  require  such  employee  to  receipt 
or  give  voucher  for  an  amount  greater  that  that  actually 
paid  to  and  received  by  him,  is  guilty  of  embezzlement, 
and  shall  be  fined  in  double  the  amount  so  withheld 
from  any  employee  of  the  Government  and  imprisoned 
not  more  than  two  years.     (R.  S.,  s.  5483.) 

U.    S.    v.    Mayers,    Fed.    Rep.,    159. 

§  87.  Disbursing  officer  unlawfully  converting,  etc., 
public  money. — Whoever,  being  a  disbursing  officer  of 
the  United  States,  or  a  person  acting  as  such,  shall  in 
any  manner  convert  to  his  own  use,  or  loan,  with  or 
without  interest,  or  deposit  in  any  place  or  in  any  man- 
ner, except  as  authorized  by  law,  any  public  money  in- 
trusted to  him;  or  shall,  for  any  purpose  not  prescribed 
by  law,  withdraw  from  the  Treasurer  or  any  assistant 
treasurer,  or  any  authorized  depositary,  or  transfer,  or 


7:»4  Federal  Criminal  Law  Procedure. 

apply,  any  portion  of  the  public  money  intrusted  to  him, 
shall  be  deemed  guilty  of  an  embezzlement  of  the  moneys 
so  converted,  loaned,  deposited,  withdrawn,  transferred, 
or  applied,  and  shall  be  fined  not  more  than  the  amount 
embezzled,  or  imprisoned  not  more  than  ten  years,  or 
both.     (R.  S.,  s.  5488.) 

15   A.  G.  Op.,  288. 

§  88.  Failure  of  Treasurer  to  safely  keep  public 
moneys. — If  the  Treasurer  of  the  United  States  or  any 
assistant  treasure!',  or  any  public  depositary,  fails  safely 
to  keep  all  moneys  deposited  by  any  disbursing  officer 
or  disbursing  agent,  as  well  as  all  moneys  deposited  by 
any  receiver,  collector,  or  other  person  having  money 
of  the  United  States,  he  shall  be  deemed  guilty  of  em- 
bezzlement of  the  moneys  not  so  safely  kept,  and  shall 
be  fined  in  a  sum  equal  to  the  amount  of  money  so  em- 
bezzled and  imprisoned  not  more  than  ten  years.  (R.  S., 
s.  5489.  31  Mar.,  1886,  24  Stat.  L.,  9,  c.  41,  s.  1;  1  Supp., 
489.) 

15  A.  G.  Op.,  288. 

§  89.  Cusodians  of  public  money  failing  to  safely 
keep,  etc. — Every  officer  or  other  person  charged  by  any 
act  of  Congress  with  the  safekeeping  of  the  public 
moneys,  who  shall  loan,  use,  or  convert  to  his  own  use, 
or  shall  deposit  in  any  bank  or  exchange  for  other  funds, 
except  as  specially  allowed  by  law,  any  portion  of  the 
public  moneys  intrusted  to  him  for  safe-keeping,  shall 
be  guilty  of  embezzlement  of  the  moneys  so  loaned,  used, 
coverted,  deposited,  or  exchanged,  and  shall  be  fined  in 
a  sum  equal  to  the  amount  of  money  so  embezzled  and 
imprisoned  not  more  than  ten  years.     (R.  S.,  s.  5490.) 

I'.  S.  v.  Cook,  17  Wall,  168;  U.  S.  v. 
Forsythe,  6  McLean,  584,  25  Fed.  Cas., 
1152   7   A.   G.   Op.,   82,  257. 

'0.  Failure  of  officer  to  render  accounts,  etc. — Every 
officer  or  agent  of  the  United  States  who,  having  re- 
ceived pubic  money  which  he  is  not  auhorized  to  retain 
;i-  salary,  pay,  or  emolument,  fails  to  render  his  ac- 
count-; I'm-  the  same  as  provided  by  law  shall  be  deemed 
guilty  <>!'  embezzlement,  and  shall  be  fined  in  a  sum  equal 


Offenses  Relating  to  Official  Duties.        795 

to  the  amount  of  the  money  embezzled  and  imprisoned 
not  more  than  ten  years.     (R.  S.,  s.  5491.) 

U.  S.  v.  Hutchison,  4  Pa.  L.  T.  Rep., 
211,  26  Fed.  Cas.,  452;  5  A.  G.  Op., 
685. 

§  91.  Failure  to  deposit  as  required. — Whoever,  hav- 
ing money  of  the  United  States  in  his  possession  or 
under  his  control,  shall  fail  to  deposit  it  with  the  Treas- 
urer, or  some  assistant  treasurer,  or  some  public  deposi- 
tary of  the  United  States,  when  required  so  to  do  by  the 
Secretary  of  the  Treasury,  or  the  head  of  any  other 
proper  department,  or  by  the  accounting  officers  of  the 
Treasury,  shall  be  deemed  guilty  of  embezzlement  there- 
of, and  shall  be  fined  in  a  sum  equal  to  the  amount  of 
money  embezzled  and  imprisoned  not  more  than  ten 
years.    (R.  S.,  s.  5492.) 

U.  S.  v.  Dimmick,  112  Fed.  Rep.,  350. 
352;  Dimmick  v.  U.  S.,  121  Fed.  Rep., 
638;    15   A.    G.    Op.,    280. 

§  92.  Provisions  of  the  five  preceding  sections,  how 
applied. — The  provisions  of  the  five  preceding  sections 
shall  be  construed  to  apply  to  all  persons  charged  with 
the  safe-keeping,  transfer,  or  disbursement  of  the  public 
money,  whether  such  persons  be  indicted  as  receivers  or 
depositaries  of  the  same.  (R.  S.,  s.  5493.) 

§  93.  Record  evidence  of  embezzlement. — Upon  the 
trial  of  any  indictment  against  any  person  for  embez- 
zling public  money  under  any  provision  of  the  six  pre- 
ceding sections,  it  shall  be  sufficient  evidence,  prima 
facie,  for  the  purpose  of  showing  a  balance  against  such 
person,  to  produce  a  transcript  from  the  books  and  pro- 
ceedings of  the  Treasury,  as  required  in  civil  cases,  un- 
der the  provisions  for  the  settlement  of  accounts  be- 
tween the  United  States  and  receivers  of  public  money. 
(R,  S.,  s.  5494.) 

§  94.  Prima  facie  evidence. — The  refusal  of  any  per- 
son, whether  in  or  out  of  office,  charged  with  the  safe- 
keeping, transfer,  or  disbursement  of  the  public  money 
to  pay  any  draft,  order,  or  warrant,  drawn  upon  him  by 
the  proper  accounting  officer  of  the  Treasury,  for  any 
public  money  in  his  hands  belonging  to  the  United 
States,  no  matter  in  what  capacity  the  same  may  have 
been  received,  or  may  be  held,  or  to  transfer  or  disburse 


796  Federal.  Criminal.  Law  Procedure. 

any  such  money,  promptly,  upon  the  legal  requirement 
of  any  authorized  officer,  shall  be  deemed,  upon  the  trial 
of  any  indictment  against  such  person  for  embezzle- 
ment, prima  facie  evidence  of  such  embezzlement.  (R.  S., 
s.  5495.) 

§  95.  Evidence  of  conversion. — If  any  officer  charged 
with  the  disbursement  of  the  public  moneys  accepts,  re- 
ceives, or  transmits  to  the  Treasury  Department  to  be 
allowed  in  his  favor  any  receipt  or  voucher  from  a  cred- 
itor of  the  United  States  without  having  paid  to  such 
creditor  in  such  funds  as  the  officer  received  for  disburse- 
ment, or  in  such  funds  as  he  may  be  authorized  by  law 
to  take  in  exchange,  the  full  amount  specified  in  such  re- 
ceipt or  voucher,  every  such  act  is  an  act  of  conversion  by 
such  officer  to  his  own  use  of  the  amount  specified  in  such 
receipt  or  voucher.     (R.  S.,  s.  5496.) 

§  96.  Banker,  etc.,  receiving  deposit  from  disbursing 
officer. — Every  banker,  broker,  or  other  person  not  an 
authorized  depositary  of  public  moneys,  who  shall  know- 
ingly receive  from  any  disbursing  officer,  or  collector  of 
internal  revenue,  or  other  agent  of  the  United  States, 
any  public  money  on  deposit,  or  by  way  of  loan  or  ac- 
commodation, with  or  without  interest,  or  otherwise 
than  in  payment  of  a  debt  against  the  United  States,  or 
shall  use,  transfer,  convert,  appropriate,  or  apply  any 
portion  of  the  public  money  for  any  purpose  not  pre- 
scribed by  law;  and  every  president,  cashier,  teller,  di- 
rector, or  other  officer  of  any  bank  or  banking  associa- 
tion who  shall  violate  any  provision  of  this  section  is 
guilty  of  embezzlement  of  the  public  money  so  deposited, 
loaned,  transferred,  used,  converted,  appropriated,  or 
applied,  and  shall  be  fined  not  more  than  the  amount 
embezzled,  or  imprisoned  not  more  than  ten  years,  or 
both.  (R.'S.,  s.  5497.  3  Feb.,  1879,  20  Stat.  L.,  280,  c. 
42,  s.  1;  1  Supp,  213.) 

Ciink    Count v    National    Hank   v.   U.    S., 
107  U.   S.,  445;    15  A.  G.   Op.  288. 

97.     Embezzlement  by  internal-revenue  officers,  etc. 
-Any  officer  connected  with,  or  employed  in,  the  Inter- 
nal  Revenue  Service  of  the  United  States,  and  any  as- 
sistant  of  such  officer,  who  shall  embezzle  or  wrongfully 


Offenses  Relating  to   Official  Duties.        797 

convert  to  his  own  use  any  money  or  other  property  of 
the  United  States,  and  any  officer  of  the  United  States, 
or  any  assistant  of  such  officer,  who  shall  embezzle  or 
wrongfully  convert  to  his  own  use  any  money  or  prop- 
erty which  may  have  come  into  his  possession  or  under 
his  control  in  the  execution  of  such  office  or  employment, 
or  under  color  or  claim  of  authority  as  such  officer  or 
assistant,  whether  the  same  shall  be  the  money  or  prop- 
erty of  the  United  States  or  of  some  other  person  or 
party,  shall,  where  the  offense  is  not  otherwise  punish- 
able by  some  statute  of  the  United  States,  be  fined  not 
more  than  the  value  of  the  money  and  property  thus 
embezzled  or  converted,  or  imprisoned  not  more  than 
ten  years,  or  both.  (R.  S.,  s.  5497.  3  Feb.,  1879,  20 
Stat.  L.,  280,  c.  42,  s.  1;  1  Supp.,  213. 

§  98.  Officer  contracting  beyond  specific  appropria- 
tion.— Whoever,  being  an  officer  of  the  United  States, 
shall  knowingly  contract  for  the  erection,  repair,  or 
furnishing  of  any  public  building,  or  for  any  public  im- 
provement, to  pay  a  larger  amount  than  the  specific  sum 
appropriated  for  such  purpose,  shall  be  fined  not  more 
than  two  thousand  dollars  and  imprisoned  not  more 
than  two  years.     (R.  S.,  s.  5503.) 

§  99.  Officer  of  United  States  court  failing  to  deposit 
money,  etc. — Whoever,  being  a  clerk  or  other  officer  of 
a  court  of  the  United  States,  shall  fail  forthwith  to  de- 
posit any  money  belonging  in  the  registry  of  the  court, 
or  hereafter  paid  into  court  or  received  by  the  officers 
thereof,  with  the  Treasurer,  assistant  treasurer,  or  a 
designated  depositary  of  the  United  States,  in  the  name 
and  to  the  credit  of  such  court,  or  shall  retain  or  con- 
vert to  his  own  use  or  to  the  use  of  another  any  such 
money,  is  guilty  of  embezzlement,  and  shall  be  fined  not 
more  than  the  amount  embezzled,  or  imprisoned  not  more 
than  ten  years,  or  both;  but  nothing  herein  shall  be  held 
to  prevent  the  delivery  of  any  such  money  upon  secur- 
ity, according  to  agreement  of  parties,  under  the  direc- 
tion of  the  court.  (R.  S.,  s.  5504.) 

Henry    v.    Sowles,    28    Fed.    Rep.,    481; 
U.  S.  v.  Bixby,  10  Biss,  238. 

§  100.  Receiving  loan  or  deposit  from  officer  of  court. 
— Whoever    shall    knowingly    receive,  from  a  clerk  or 


798  Federal  Criminal  Law  Procedure. 

other  officer  of  a  court  of  the  United  States,  as  a  deposit, 
loan,  or  otherwise,  any  money  belonging  in  the  registry 
of  such  court,  is  guilty  of  embezzlement,  and  shall  be 
punished  as  prescribed  in  the  preceding  section.  (R.  S., 
s.  5505.) 

§  101.  Failure  to  make  returns  or  reports. — Every 
officer  who  neglects  or  refuses  to  make  any  return  or  re- 
port which  he  is  required  to  make  at  stated  times  by 
any  act  of  Congress  or  regulation  of  the  Department  of 
the  Treasury,  other  than  his  accounts,  within  the  time 
prescribed  by  such  act  or  regulation,  shall  be  fined  not 
more  than  one  thousand  dollars.     (E.  S.,  s.  1780.) 

§  102.  Aiding  in  trading  in  obscene  literature,  etc. — 
Whoever,  being  an  officer,  agent,  or  employee  of  the  Gov- 
ernment of  the  United  States  shall  knowingly  aid  or  abet 
any  person  engaged  in  violating  any  provision  of  law 
prohibiting  importing,  advertising,  dealing  in,  exhibit- 
ing, or  sending  or  receiving  by  mail,  obscene  or  indecent 
publications  or  representations,  or  means  for  prevent- 
ing conception  or  producing  abortion,  or  other  article  of 
indecent  or  immoral  use  or  tendency,  shall  be  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  ten  years,  or  both.  (R.  S.,  s.  1785,  1  Oct.,  1890,  26 
Stat.  L.,  615,  c.  1244,  s.  12;  1  Supp.,  860.  27  Aug.,  1894, 
28  Stat.  L.,  549,  c.  3494,  s.  11;  2  Supp.,  311.  24  July, 
1879,  30  Stat.  L.,  209,  c.  11,  s.  17;  2  Supp.,  708.) 

U.  S.  v.  Williams,  3  Fed.  Rep.,  489; 
see  cases  under  R.  S.,  3893,  Fed.  Rep., 
Dig.,    7446,   7451. 

§  103.  Collecting  and  disbursing  officers  forbidden  to 
trade  in  public  funds,  etc.— Whoever,  being  an  officer  of 
the  United  States  concerned  in  the  collection  or  the  dis- 
bursement of  the  revenues  thereof,  shall  carry  on  any 
trade  or  business  in  the  funds  or  debts  of  the  United 
SI  ales,  or  of  any  State,  or  in  any  public  property  of 
either,  shall  lie  fined  not  more  than  three  thousand  dol- 
lar-, or  imprisoned  not  more  than  one  year,  or  both,  and 
be  removed  from  office,  and  thereafter  be  incapable  of 
holding  any  office  under  the  United  States.  (R.  S.,  ss. 
1788,  1789.) 

14  A.  G.  Op.,  352. 


Offenses  Eelating  to   Official  Duties.        799 

§  104.  Certain  officers  forbidden  to  purchase,  etc., 
witness,  etc.,  fees. — Whoever,  being  a  judge,  clerk,  or 
deputy  clerk  of  any  court  of  the  United  States,  or  of 
any  Territory  thereof,  or  a  United  States  district  attor- 
ney, assistant  attorney,  marshal,  deputy  marshal,  com- 
missioner, or  other  person  holding  any  office  or  employ- 
ment, or  position  of  trust  or  profit  under  the  Govern- 
ment of  the  United  States  shall,  either  directly  or  in- 
directly, purchase  at  less  than  the  full  face  value  there- 
of, any  claim  against  the  United  States  for  the  fee,  mile- 
age, or  expenses  of  any  witness,  juror,  deputy  marshal, 
or  any  other  officer  of  the  court  whatsoever,  shall  be 
fined  not  more  than  one  thousand  dollars.  (25  Feb., 
1897,  29  Stat.  L.,  595,  c.  316;  2  Supp.,  563.) 

§  105.  Falsely  certifying,  etc.,  as  to  record  of  deeds. 
— Whoever,  being  an  officer  or  other  person  authorized 
by  any  law  of  the  United  States  to  record  a  conveyance 
of  real  property  or  any  other  instrument  which  by  such 
law  may  be  recorded,  shall  knowingly  certify  falsely  that 
such  conveyance  or  instrument  has  or  has  not  been  record- 
ed, shall  be  fined  not  more  than  one  thousand  dollars,  or 
imprisoned  not  more  than  seven  years,  or  both. 

§  106.  Other  false  certificates. — Whoever  being  a 
public  officer  or  other  person  authorized  by  any  law  of 
the  United  States  to  make  or  give  a  certificate  or  other 
writing,  shall  knowingly  make  and  deliver  as  true  such 
a  certificate  or  writing,  containing  any  statement  which 
he  knows  to  be  false,  in  a  case  where  the  punishment 
thereof  is  not  elsewhere  expressly  provided  by  law,  shall 
be  fined  not  more  than  five  hundred  dollars,  or  imprisoned 
not  more  than  one  year,  or  both. 

§  107.  Inspector  of  steamboats  receiving  illegal  fees. 
— Every  inspector  of  steamboats  who,  upon  any  pre- 
tense, receives  any  fee  or  reward  for  his  services,  ex- 
cept what  is  allowed  to  him  by  law,  shall  forfeit  his 
office,  and  be  fined  not  more  than  five  hundred  dollars, 
or  imprisoned  not  more  than  six  months,  or  both.  (R. 
S.,  s.  5482.) 

§  108.  Pension  agent  taking  fee,  etc. — Every  pension 
agent,  or  other  person  employed  or  appointed  by  him, 
who  takes,  receives,  or  demands  any  fee  or  reward  from 


800  Federal  Criminal  Law  Procedure. 

any  pensioner  for  any  service  in  connection  with  the  pay- 
ment of  his  pension,  shall  be  fined  not  more  than  five 
hundred  dollars.    (R,  S.,  s.  5487.) 

§  109.  Officer  not  to  be  interested  in  claims  against 
United  States. — Whoever,  being  an  officer  of  the  United 
States,  or  a  person  holding  any  place  of  trust  or  profit, 
or  discharging  any  official  function  under,  or  in  connec- 
tion with,  any  Executive  Department  of  the  Government 
of  the  United  States,  or  under  the  Senate  or  House  of 
Representatives  of  the  United  States,  shall  act  as  an 
agent  or  attorney  for  prosecuting  any  claim  against  the 
United  States,  or  in  any  manner,  or  by  any  means,  other- 
wise than  in  discharge  of  his  proper  official  duties,  shall 
aid  or  assist  in  the  prosecution  or  support  of  any  such 
claim,  or  receive  any  gratuity,  or  any  share  of  or  interest 
in  any  claim  from  any  claimant  against  the  United  States, 
with  intent  to  aid  or  assist,  or  in  consideration  of  having 
aided  or  assisted,  in  the  prosecution  of  such  claim,  shall 
be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  one  year,  or  both.    (R.  S.  s.  5498.) 

Ex  parte  Curtis,  106  U.  S.,  371;  Tyler's        31   Ct.   CI.,   35;   People  v.   Duane,    121   N. 
Motion,   18   Ct.   CI.,   25;   In  re  Winthrop,        Y.,  373;   16  A.  G.   Op.,  478. 

§  110.  Member  of  Congress,  etc.,  soliciting  or  accept- 
ing bribe. — Whoever,  being  elected  or  appointed  a  Mem- 
ber of  or  Delegate  to  Congress,  or  a  Resident  Commis- 
sioner shall,  after  his  election  or  appointment,  and  either 
before  or  after  he  has  qualified,  and  during  his  con- 
tinuance in  office,  directly  or  indirectly  ask,  accept,  re- 
ceive, or  agree  to  receive,  any  money,  property,  or  other 
valuable  consideration,  or  any  promise,  contract,  under- 
taking, obligation,  gratuity,  or  security  for  the  payment 
of  money  or  for  the  delivery  or  conveyance  of  anything 
of  value  to  him  or  to  any  person  with  his  consent,  con- 
nivance, or  concurrence,  for  his  attention  to,  or  services, 
or  with  the  intent  to  have  his  action,  vote,  or  decision 
influenced  on  any  question,  matter,  cause,  or  proceeding, 
which  may  at  any  time  be  pending  in  either  House  of 
Congress  or  before  any  committee  thereof,  or  which  by 
law  or  under  the  Constitution  may  be  brought  before 
him  in  his  official  capacity,  or  in  his  place  as  such  Mem- 
Imt,  Delegate,  or  Resident  Commissioner,  shall  be  fined 


Offenses  Relating  to  Official  Duties.         801 

not  more  than  three  times  the  amount  asked,  accepted, 
or  received,  and  imprisoned  not  more  than  three  years; 
and  shall,  moreover,  forfeit  his  office  or  place,  and  there- 
after be  forever  disqualified  from  holding  any  office  of 
honor,  trust,  or  profit  under  the  Government  of  the  Unit- 
ed States.    (R.  S.,  ss.  1781,  5500,  5502.) 

U.   S.  v.   Kessel,   62   Fed.   Rep.,   57;   U. 
S.   v.   Van   Leuven,    62    Fed.    Rep.,    62. 

§  111.  Offering,  etc.,  Member  of  Congress  bribe,  etc. 
— Whoever  shall  promise,  offer,  or  give,  or  cause  to  be 
promised,  offered,  or  given,  any  money  or  other  thing 
of  value,  or  shall  make  or  tender  any  contract,  under- 
taking, obligation,  gratuity,  or  security  for  the  payment 
of  money  or  for  the  delivery  or  conveyance  of  anything 
of  value,  to  any  Member  of  either  House  of  Congress,  or 
Delegate  to  Congress,  or  Resident  Commissioner,  after 
his  election  or  appointment  and  either  before  or  after  he 
has  qualified,  and  during  his  continuance  in  office,  or  to 
any  person  with  his  consent,  connivance,  or  concurrence, 
with  intent  to  influence  his  action,  vote,  or  decision,  on 
any  question,  matter,  cause,  or  proceeding  which  may 
at  any  time  be  pending  in  either  House  of  Congress,  or 
before  any  committee  thereof,  or  which  by  law  or  under 
the  Constitution  may  be  brought  before  him  in  his  offi- 
cial capacity  or  in  his  place  as  such  Member,  Delegate, 
or  Resident  Commissioner,  shall  be  fined  not  more  than 
three  times  the  amount  of  money  or  value  of  the  thing 
so  promised,  offered,  given,  made,  or  tendered,  and  im- 
prisoned not  more  than  three  years.     (R.  S.,  s.  5450.) 

§  112.  Member  of  Congress  taking  consideration  for 
procuring  contracts,  offices,  etc.,  offering  Member  consid- 
eration, etc. — Whoever,  being  elected  or  appointed  a 
Member  of  or  Delegate  to  Congress,  or  a  Resident  Com- 
missioner, shall  after  his  election  or  appointment  and 
either  before  or  after  he  has  qualified  and  during  his  con- 
tinuance in  office,  or  being  an  officer  or  agent  of  the  United 
States,  shall  directly  or  indirectly  take,  receive,  or  agree 
to  receive,  from  any  person,  any  money,  property,  or  other 
valuable  consideration  whatever,  for  procuring,  or  aid- 
ing to  procure,  any  contract,  appointive  office,  or  place 
from  the  United  States  or  from  any  officer  or  Depart- 
ment thereof,  for  any  person  whatever,  or  for  giving  any 

51 


802  Federal  Criminal  Law  Procedure. 

such  contract,  appointive  office,  or  place  to  any  person 
whomsoever;  or  whoever,  directly  or  indirectly,  shall 
offer,  or  agree  to  give,  or  shall  give  or  bestow,  any  money, 
property,  or  other  valuable  consideration  whatever,  for 
the  procuring,  or  aiding  to  procure,  any  such  contract,  ap- 
pointive office,  or  place,  shall  be  fined  not  more  than  ten 
thousand  dollars  and  imprisoned  not  more  than  two 
years;  and  shall,  moreover,  be  disqualified  from  holding 
any  office  of  honor,  profit,  or  trust  under  the  Government 
of  the  United  States.  Any  such  contract  or  agreement 
may,  at  the  option  of  the  President,  be  declared  void. 
(R.  S.,  s.  1781.) 

Ex   parte    Curtis,    106    U.    S.,    371;     U.       v.    Dietrich,    126    Fed.    Rep.,    664,    676;     1 
S.   v.    Driggs,    125    Fed.   Rep.,    520;     U.    S.        Comp.    Dec.,   859;     14   A.   G.    Op.,   482. 

§  113.  Member  of  Congress  taking  compensation  in 
matters  to  which  United  States  is  a  party. — Whoever, 
being  elected  or  appointed  a  Senator,  Member  of  or  Dele- 
gate to  Congress,  or  a  Resident  Commissioner,  shall, 
after  his  election  or  appointment  and  either  before  or 
after  he  has  qualified,  and  during  his  continuance  in  of- 
fice, or  being  the  head  of  a  department,  or  other  officer 
or  clerk  in  the  employ  of  the  United  States,  shall,  direct- 
ly or  indirectly,  receive,  or  agree  to  receive,  any  com- 
pensation whatever  for  any  services  rendered  or  to  be 
rendered  to  any  person  either  by  himself  or  another,  in 
relation  to  any  proceeding,  contract,  claim,  controversy, 
charge,  accusation,  arrest  or  other  matter  or  thing  in 
which  the  United  States  is  a  party  or  directly  or  indi- 
rectly interested,  before  any  department,  court-martial, 
bureau,  officer,  or  any  civil,  military,  or  naval  commis- 
sion whatever,  shall  be  fined  not  more  than  ten  thou- 
sand dollars  and  imprisoned  not  more  than  two  years; 
and  shall,  moreover,  thereafter  be  incapable  of  holding 
any  office  of  honor,  trust,  or  profit  under  the  Government 
of  *the  United  States.     (R.  S.,  s.  1782.) 

Ex  parte   Curtis,   106   U.    S.    371;    Bur-  552;  U.  S.  v.   Booth,  148  Fed.  Rep.,  112; 

ton   v.   U.  S.   196  U.   S.,  283;   202  U.   S.,  14   A.   G.   Op.,   482;    17   A.   G.   Op.,    420; 

344;    U.    S.    v.    Driggs,    125    Fed.    Rep.,  18  A.  G.  Op.,  161;  1  Comp.  Dec.  859. 
520;    Burton    v.    U.    S.,    131    Fed.    Rep., 

§  1 14.  Member  of  Congress  not  to  be  interested  in 
contract. — Whoever,  being  elected  or  appointed  a  Mem- 
ber of  or  Delegate  to  Congress,  or  a  Resident  Commis- 
sioner, shall,  after  his  election  or  appointment  and  either 


Offenses  Relating  to  Official  Duties.        803 

before  or  after  he  lias  qualified,  and  during  his  con- 
tinuance in  office,  directly  or  indirectly,  himself,  or  bv 

7  %/  %/    7  */ 

any  other  person  in  trust  for  him,  or  for  his  use  or  bene- 
fit, or  on  his  account,  undertake,  execute,  hold,  or  enjoy, 
in  whole  or  in  part,  any  contract  or  agreement,  made 
or  entered  into  in  behalf  of  the  United  States  by  any 
officer  or  person  authorized  to  make  contracts  on  its  be- 
half, shall  be  fined  not  more  than  three  thousand  dollars. 
All  contracts  or  agreements  made  in  violation  of  this 
section  shall  be  void;  and  whenever  any  sum  of  money 
is  advanced  by  the  United  States,  in  consideration  of  any 
such  contract  or  agreement,  it  shall  forthwith  be  repaid; 
and  in  case  of  failure  or  refusal  to  repay  the  same  when 
demanded  b}r  the  proper  officer  of  the  Department  under 
whose  authority  such  contract  or  agreement  shall  have 
been  made  or  entered  into,  suit  shall  at  once  be  brought 
against  the  person  so  failing  or  refusing  and  his  sure- 
ties, for  the  recovery  of  the  money  so  advanced.  (R.  S., 
s.  3739.) 

U.   S.  v.   Dietrich,   126   Fed.   Rep.,   671. 
2  A.  G.  Op.,  38;   5  A.  G.  Op.,  697;   IS 
A.  G.   Op.,  280. 

§  115.  Officer  making  contract  with  Member  of  Con- 
gress.— Whoever,  being  an  officer  of  the  United  States, 
shall  on  behalf  of  the  United  States,  directly  or  indirect- 
ly make  or  enter  into  any  contract,  bargain,  or  agree- 
ment, in  writing  or  otherwise,  with  any  Member  of  or 
Delegate  to  Congress,  or  any  Resident  Commissioner, 
after  his  election  or  appointment  as  such  Member,  Dele- 
gate, or  Resident  Commissioner,  and  either  before  or 
after  he  has  qualified,  and  during  his  continuance  in 
office,  shall  be  fined  not  more  than  three  thousand  dol- 
lars.    (R.  S.,  s.  3742.) 

4   A.   G.   Op.,   47;    15   A.   G.   Op.,   151, 

280. 

§  116.  Contracts  to  which  two  preceding  sections  do 
not  apply. — Nothing  contained  in  the  two  preceding  sec- 
tions shall  extend,  or  be  construed  to  extend,  to  any  con- 
tract or  agreement  made  or  entered  into,  or  accepted, 
by  any  incorporated  company,  where  such  contract  or 
agreement  is  made  for  the  general  benefit  of  such  incor- 
poration or  company;  nor  to  the  purchase  or  sale  of  bills 
of  exchange  or  other  property  by  any    Member    of    or 


804  Federal  Criminal  Law  Procedure. 

Delegate  to  Congress,  or  Resident  Commissioner,  where 
the  same  are  ready  for  delivery,  and  payment  therefor 
is  made,  at  the  time  of  making  or  entering  into  the  con- 
tract  or  agreement.    (R.  S.,  s.  3740.) 

§  117.  United  States  officer  accepting  bribe. — Who- 
ever, being  an  officer  of  the  United  States,  or  a  person 
acting  for  or  on  behalf  of  the  United  States,  in  any  offi- 
cial capacity,  under  or  by  virtue  of  the  authority  of  any 
department  or  office  of  the  Government  thereof;  or  who- 
ever, being  an  officer  or  person  acting  for  or  on  behalf 
of  either  House  of  Congress,  or  of  any  committee  of 
either  House,  or  of  both  Houses  thereof,  shall  ask,  ac- 
cept, or  receive  any  money,  or  any  contract,  promise, 
undertaking,  obligation ,  gratuity,  or  security  for  the 
payment  of  money,  or  for  the  delivery  or  conveyance  of 
anything  of  value,  with  intent  to  have  his  decision  or 
action  on  any  question,  matter,  cause,  or  proceeding 
which  may  at  any  time  be  pending,  or  which  may  by 
law  be  brought  before  him  in  his  official  capacity,  or  in 
his  place  of  trust  or  profit,  influenced  thereby,  shall  be 
fined  not  more  than  three  times  the  amount  of  money  or 
value  of  the  thing  so  asked,  accepted,  or  received,  and 
imprisoned  not  more  than  three  years;  and  shall,  more- 
over, forfeit  his  office  or  place  and  thereafter  be  forever 
disqualified  from  holding  any  office  of  honor,  trust,  or 
profit  under  the  Government  of  the  United  States.  (R.  S., 
ss.  5501,  5502.) 

U.  S.  v.  Kessel,  62  Fed.  Rep.,  57;  U.  v.  Ingham,  97  Fed.  Rep.,  935;  King  v. 
S.  v.  Van  Leuven,  62  Fed.  Rep.,  62;  U.  S.,  112  Fed.  Rep.,  988;  Sharp  v.  U. 
U.  S.  v.  Boyer,  85  Fed.  Rep.,  425;  U.  S.        S.,   138  Fed.  Rep.,  878. 

§  118.  Political  contributions  not  to  be  solicited  by 
certain  officers. — No  Senator  or  Representative  in,  or 
Delegate  or  Resident  Commissioner  to  Congress,  or  Sen- 
ator, Representative,  Delegate,  or  Resident  Commission- 
er elect,  or  officer  or  employee  of  either  House  of  Con- 
gress,  and  no  executive,  judicial,  military,  or  naval  offi- 
cer  of  the  United  States,  and  no  clerk  or  employee  of 
any  department,  branch,  or  bureau  of  the  executive, 
judicial,  or  military  or  naval  service  of  the  United  States, 
shall,  directly,  or  indirectly,  solicit  or  receive,  or  be  in 
any  manner  concerned  in  soliciting  or  receiving,  any 
nient,  subscription,  or  contribution  for  any  politi- 


Offenses  Relating  to  Official,  Duties.         805 

cal  purpose  whatever,  from  any  officer,  clerk,  or  em- 
ployee of  the  United  State,  or  any  department,  branch, 
or  bureau  thereof,  or  from  any  person  receiving  any  sal- 
ary or  compensation  from  moneys  derived  from  the 
Treasury  of  the  United  States.  (16  Jan.,  1883,  22  Staty 
L.,  406,  c.  27,  s.  11;  1  Supp.,  395.) 

§  119.  Political  contributions  not  to  be  received  in 
public  offices. — No  person  shall,  in  any  room  or  building 
occupied  in  the  discharge  of  official  duties  by  any  officer 
or  employee  of  the  United  States  mentioned  in  the  pre- 
ceding section,  or  in  any  navy-yard,  fort,  or  arsenal,  so- 
licit in  any  manner  whatever  or  receive  any  contribution 
of  money  or  other  thing  of  value  for  any  political  pur- 
pose whatever.  (16  Jan.,  1883,  22  Stat.  L.,  407,  c.  27,  s. 
12;  1  Supp.,  396;  U.  S.  v.  Thayer,  209  U,  S.,  39;  U.  S.  v. 
Thayer,  154  Fed.  Rep.,  508;  U.  S.  v.  Smith,  163  Fed. 
Rep.,  926.) 

§  120.  Immunity  from  official  proscription,  etc. — No 
officer  or  employee  of  the  United  States  mentioned  in  sec- 
tion one  hundred  and  eighteen,  shall  discharge,  or  pro- 
mote or  degrade,  or  in  any  manner  change  the  official 
rank  or  compensation  of  any  other  officer  or  employee, 
or  promise  or  threaten  so  to  do,  for  giving  or  withhold- 
ing or  neglecting  to  make  any  contribution  of  money  or 
other  valuable  thing  for  any  political  purpose.  (16  Jan., 
1883,  22  Stat.  L.,  407,  c.  27,  s.  13;  1  Supp.,  396.) 

§  121.  Giving  money,  etc.,  to  officials  for  political  \ 
purposes  prohibited. — No  officer,  clerk,  or  other  person 
in  the  service  of  the  United  States  shall,  directly  or  in- 
directly, give  or  hand  over  to  any  other  officer,  clerk,  or 
person  in  the  service  of  the  United  States,  or  to  any  Sen- 
ator or  Member  of  or  Delegate  to  Congress,  or  Resident 
Commissioner,  any  money  or  other  valuable  thing  on  ac- 
count of  or  to  be  applied  to  the  promotion  of  any  politi- 
cal object  whatever.  (16  Jan.,  1883,  22  Stat.  L.,  407,  c. 
27,  s.  14;  1  Supp.,  396.) 

§  122.  Penalty  for  violating  provinsions  of  four 
preceding  sections. — Whoever  shall  violate  any  provi- 
sion of  the  four  preceding  sections  shall  be  fined  not  more 
than  five  thousand  dollars,  or  imprisoned  not  more  than 
three  years,  or  both.  (16  Jan.  1883,  22  Stat.  L.,  407  c. 
27,  s.  15;  1  Supp.,  396.) 


806  Federal  Criminal  Law  Procedure. 

L23.  Government  officer,  etc.,  giving  out  advance 
information  respecting  crop  reports. — Whoever,  being  an 
officer  or  employee  of  the  United  States  or  a  person  act- 
ing for  or  on  behalf  of  the  United  States  in  any  capacity 
tinder  or  by  virtue  of  the  authority  of  any  Department 
or  office  thereof,  and  while  holding  such  office,  employ- 
ment or  position  shall,  by  virtue  of  the  office,  employment, 
or  position  held  by  him,  become  possessed  of  any  in- 
formation which  might  exert  an  influence  upon  or  affect 
the  markel  value  of  any  product  of  the  soil  grown  within 
the  United  States,  which  information  is  by  law  or  by  the 
rules  of  the  Department  or  office  required  to  be  withheld 
from  publication  until  a  fixed  time,  and  shall  willfully  im- 
part, directly  or  indirectly,  such  information,  or  any  part 
thereof,  to  any  person  not  entitled  under  the  law  or  the 
rules  of  the  Department  or  office  to  receive  the  same; 
or  shall,  before  such  information  is  made  public  through 
regular  official  channels,  directly  or  indirectly  speculate 
in  any  such  producl  respecting  which  he  has  thus  become 
po-  e  ed  of  such  information,  by  buying  or  selling  the 
.Hue  in  ;ni\  quantity,  shall  be  fined  not  more 
than  ten  thousand  dollars,  or  imprisoned  not  more 
than  ten  years,  or  both:  Provided,  That  no  per- 
son shall  be  deemed  guilty  of  a  violation  of  any 
iich  rule  unless  prior  to  such  alleged  violation  be 
shall  have  had  actual  knowledge  thereof. 

L24.  Government  officer,  e'tc,  knowingly  compiling 
or  issuing  false  statistics  respecting  crops. — Whoever,  be 
ing  .in  officer  or  employee  of  the  United  States,  and  whose 
duties  require  the  compilation  or  report  of  statistics  or 
information  relative  l<»  the  products  of  the  soil,  shall 
knowingly  compile  for  issuance,  <>r  issue,  any  false  statis- 
tic or  information  as  a  report  of  the  United  Slates,  shall 
he  fined  not  more  than  five  thousand  dollars,  or  im- 
pn  oned  not  more  than  five  years,  or  both. 


CHAPTER      SIX. 

OFFENSES  AGAINST  PUBLIC  JUSTICE. 

§  125.  Perjury. 

126.  Subornation    of    perjury. 

127.  Stealing   or   altering   process;     procuring   false   bail,   etc. 

128.  Destroying,  etc.,  public  records. 

129.  Destroying  records  by  officer  in  charge. 

130.  Forging  signature  of  judge,  etc. 

131.  Bribery  of  a  judge  or  judicial  officer. 

132.  Judge  or  judicial  officer  accepting  a  bribe,  etc. 

133.  Juror,   referee,   master,   etc.,  or  judicial   officer,  etc.,  accepting 

bribe. 

134.  Witness  accepting  bribe. 

135.  Intimidation  or  corruption  of  witness,  or  grand  or  petit  juror, 

or  officer. 

136.  Conspiring  to  intimidate  party,   witness,  or  juror. 

137.  Attempt  to  influence  juror. 

138.  Allowing  prisoner  to  escape. 

139.  Application   of  preceding  section. 

140.  Obstructing  process  or  assaulting  an  officer. 

141.  Rescuing,    etc.,    prisoner;     concealing,    etc.,    person    for    whom 

warrant  has  issued. 

142.  Rescue  at  execution. 

143.  Recue  of  prisoner. 

144.  Rescue  of  body   of  executed   offender. 

145.  Extortion  by  informer. 

146.  Misprision  of  felony. 

§  125.  Perjury. — Whoever,  having  taken  an  oath  be- 
fore a  competent  tribunal,  officer,  or  person,  in  any  case 
in  which  a  law  of  the  United  States  authorizes  an  oath 
to  be  administered,  that  he  will  testify,  declare,  depose, 
or  certify  truly,  or  that  any  written  testimony,  declara- 
tion, deposition,  or  certificate  by  him  subscribed,  is  true, 
shall  willfully  and  contrary  to  such  oath  state  or  sub- 
scribe any  material  matter  which  he  does  not  believe  to 
be  true,  is  guilty  of  perjury,  and  shall  be  fined  not  more 
than  two  thousand  dollars  and  imprisoned  not  more  than 
five  years.    (R.  S.,  s.  5392.)       . 

U.   S.  v.  Passmore.   4  Dull.   392;  U.   S.  S.,  177;  Logan  v.  U.  S..   144  U.   S.,  263, 

v.    Bailey,    9    Pet.,    238;    U.    S.    v.    Wood.  302;    U.  S.  v.  Eaton,  144  U.  S.,  677;  Caha 

14    Pet.,    430;      U.    S.    v.    Nickersen.    17  v.    U.    S.,     152    U.    S.,    211,    215.    220; 

How..    204:    U.    S.    v.    Curtis,    107    U.    S.,  New    York    v.    Eno,    155    U.    S.,    89,    97; 

671;  U.   S.  v.  Ambrose,  108  U.  S..  336,  2  Dunbar   v.    U.    S..    156    U.    S.,    185,    192; 

Fed.   Rep.,   556;   U.   S.  v.   Barber,   140  U.  Todd    v.    U.    S.,    158    U.    S.,    278.    284; 


(807) 


808 


Fedebal  Ckiminal  Law  Procedure. 


Bucklin  v.  U.  S.,  159  U.  S.,  680,  682; 
Markham  v.  U.  S.,  160  U.  S.  319, 
323;  In  re  Pollock,  165  U.  S.,  526, 
533;  U.  S.  v.  Atkins,  1  Sprague,  558, 
24  Fed.  Cas.,  885;  U.  S.  v.  Babcock, 
4  McLean,  113,  24  Fed.  Cas.,  928, 
U.  S.  v.  Clark,  1  Gall.,  497,  25  Fed. 
Cas.,  411;  U.  S.  v.  Conner,  3  McLean, 
25  Fed.  Cas.,  595;  U.  S.  v. 
Deming,  4  McLean,  3  25  Fed.  Cas.,  816; 
l  .  S.  v.  Kendrick,  2  Mas.,  60,  26  Fed. 
Cas.,  758;  Ex.  parte  Bridges,  2  Woods, 
428,  4  Fed.  Cas.,  99;  U.  S.  v.  Nich- 
ois,    4    McLean,    23,    27    Fed.    Cas.,    151; 

.  v.  Smith.  1  Saw.,  277,  27  Fed. 
Cas.,  1175;  U.  S.  v.  Sonachall,  4  Biss., 
425,  11  Fed.  Cas.,  1259;  U.  S.  v.  Volz, 
14  match.,  15,  28  Fed.  Cas.,  384;  U. 
S.  v.  Jones,  14  Blatch.,  90,  26  Fed. 
Cas..    638;     U.     S.    v.     Baer,     18    Blatch., 

6  Fed.  Cas.,  42;  U.  S.  v.  Bartow, 
10  Fed.  Rep.,  873;  U.  S.  v.  Neal,  14 
Fed.  Rep.,  767;  U.  S.  v.  Madison,  21 
Fed.  Rep.,  628;  U.  S.  v.  Walsh,  22 
Fed.  Rep.,  644;  U.  S.  v.  Landsberg, 
23  Fed.  Rep.,  585;  U.  S.  v.  Hearing, 
26    Fed.    Rep.,    744;    U.    S.    v.    Grottkau, 

30  Fed.    Rep.,    672;    U.    S.   v.    Burkhardt, 

31  Fed.    Rep.,    141;    U.    S.    v.    Boggs,    31 
fed.   Rep.,  337;    U.  S.  v.  McConaughy,  33 


Fed.  Rep.,  168;  Babcock  v.  U.  S.,  34 
Fed.  Rep.,  873;  U.  S.  v.  Howard,  37 
Fed.  Rep.,  666;  U.  S.  v.  Cuddy,  39 
Fed.  Rep.,  696;  U.  S.  v.  Edwards,  43 
Fed.  Rep.,  67;  U.  S.  v.  Wood,  44  Fed. 
Rep.,  753;  U.  S.  v.  Manion,  44  Fed. 
Rep.,  800;  U.  S.  v.  Hall,  44  Fed.  Rep., 
864;  U.  S.  v.  Bedford,  49  Fed.  Rep., 
54;  U.  S.  v.  Law,  50  Fed.  Rep.,  915; 
U.  S.  v.  Singleton,  54  Fed.  Rep.,  488; 
U.  S.  v.  Wood,  70  Fed.  Rep.,  485;  U. 
S.  v.  Pettus,  84  Fed.  Rep.,  791;  U. 
S.  v.  Maid,  116  Fed.  Rep.,  650;  Noah 
v.  U.  S.,  128  Fed.  Rep.,  270;  U.  S.  v. 
Hardison,  135  Fed.  Rep.,  419;  Van 
Gesner  v.  U.  S.,  153  Fed.  Rep.,  46; 
U.  S.  v.  Williamson,  153  Fed.  Rep., 
46;  Nurnberger  v.  U.  S.,  156  Fed.  Rep., 
721;  O'Leary  v.  U.  S.,  158  Fed.  Rep., 
176;  WechsTer  v.  U.  S.,  158  Fed.  Rep., 
579;  Nickell  v.  U.  S.,  161  Fed.  Rep., 
702;  Sullivan  v.  U.  S.,  161  Fed.  Rep., 
254;  Barnard  v.  U.  S.,  162  Fed.  Rep., 
622;  U.  S.  v.  Lamson,  165  Fed.  Rep., 
80;  Hashagen  v.  U.  S.,  169  Fed.  Rep., 
396;  U.  S.  v.  Patterson,  171  Fed.  Rep., 
241;  U.  S.  v.  Ammerman,  176  Fed. 
Rep.,  635;  2  A.  G.  Op.,  700;  2  Comp. 
Dec,    2583. 


Babcock  v.  U.  S.,  34  Fed.  Rep.,  873: 
U.  S.  v.  Howard,  132  Fed.  Rep.,  325; 
U.  S.  v.  Cobban,  134  Fed.  Rep.,  290; 
U.    S.   v.    Brace,    144   Fed.    Rep.,    869. 


§  126.  Subordination  of  perjury. — Whoever  shall  pro- 
cure another  to  commit  any  perjury  is  guilty  of  suborna- 
tion or  perjury,  and  punishable  as  in  the  preceding  sec- 
tion prescribed.     (R.  S.,  s.  5393.) 

I".  S.  v.  Donnee,  3  Woods,  39,  25 
Fed.  Cas.,  817;  U.  S.  v.  Wilcox,  4 
Blatch.,  393,  28  Fed.  Cas.,  600;  U. 
S.  v.  Evans,  19  Fed.  Rep..  912;  U. 
S.     v.     Thompson,     31     Fed.     Rep.,     331; 

§  127.  Stealing  or  altering  process;  procuring  false 
bail,  etc. — Whoever  shall  feloniously  steal,  take  away, 
«i  iter,  falsify,  or  otherwise  avoid  any  record,  writ,  pro- 
cess, or  oilier  proceeding,  in  any  court  of  the  United 
States,  by  means  whereof  any  judgment  is  reversed, 
made  void,  or  does  not  take  effect;  or  whoever  shall 
acknowledge,  or  procure  to  be  acknowledged,  in  any  such 
court,  any  recognizance,  bail,  or  judgment,  in  the  name 
of  any  other  person  not  privy  or  consenting  to  the  same, 
shall  be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  seven  years  or  both;  but  this 
provision  shall  not  extend  to  the  acknowledgment  of  any 
judgment  by  an  attorney,  duly  admitted  for  any  person 
againsl  whom  such  judgment  is  had  or  given.  (R.  S.,  s. 
5394.) 

I'.  S.  v.  Crecilius,  34  Fed.  Rep.,  30; 
Barbel  v.  I'.  S..  35  Fed.  Rep.,  886;  5 
A.    O.    Op.,    523. 


Offences  Against  Public   Justice.  809 

§  128.  Destroying,  etc.,  public  records. — Whoever 
shall  wilfully  and  unlawfully  conceal,  remove,  mutilate, 
obliterate,  or  destroy,  or  attempt  to  conceal,  remove, 
mutilate,  obliterate,  or  destroy,  or,  with  intent  to  con- 
ceal, remove,  mutilate,  obliterate,  destroy,  or  steal,  shall 
take  and  carry  away  any  record,  proceeding,  map,  book, 
paper,  document,  or  other  thing,  filed  or  deposited  with 
any  clerk  or  officer  of  any  court  of  the  United  States,  or 
in  any  public  office,  or  with  any  judicial  or  public  officer 
of  the  United  States,  shall  be  fined  not  more  than  two 
thousand  dollars,  or  imprisoned  not  more  than  three 
years,  or  both.     (E.  S.,  s.  5403.) 

U.    S.    v.    Goldberg,    7    Biss.,    175,    178,  Groat,     30    Fed.    Rep.,    764;    Mc    Inerney 

25     Fed.     Cas.,      1342;      Mackin     v.     U.  v.    U.     S.,     143     Fed.     Rep.,     729;     People 

S.,   23    Fed.   Rep.,   334;    Ex  parte   Porkins,  v.    Wise,    2     How.     (N.     S.),     92;     Ayres 

29    Fed.    Rep.,    900,    912;    U.    S.    v.     De  v.    Covill,    18    Barb.,    263. 

§  129.  Destroying  records  by  officer  in  charge. — Who- 
ever, having  the  custody  of  any  record,  proceeding,  map, 
book,  document,  paper,  or  other  thing  specified  in  the 
preceding  section,  shall  wilfully  and  unlawfully  conceal, 
remove,  mutilate,  obliterate,  falsify,  or  destroy  any  such 
record,  proceeding,  map,  book,  document,  paper,  or  thing, 
shall  be  fined  not  more  than  two  thousand  dollars,  or 
imprisoned  not  more  than  three  years,  or  both;  and  shall 
moreover  forfeit  his  office  and  be  forever  afterward  dis- 
qualified from  holding  any  office  under  the  Government 
of  the  United  States.     (R.*  S.,  s.  5408.) 

§  130.  Forging  signature  of  judge,  etc. — Whoever 
shall  forge  the  signature  of  any  judge,  register,  or  other 
officer  of  any  court  of  the  United  States,  or  of  any  Ter- 
ritory thereof,  or  shall  forge  or  counterfeit  the  seal  of 
any  such  court,  or  shall  knowingly  concur  in  using  any 
such  forged  or  counterfeit  signature  or  seal,  for  the  pur- 
pose of  authenticating  any  proceeding  or  document,  or 
shall  tender  in  evidence  any  such  proceeding  or  document 
with  a  false  or  counterfeit  signature  of  any  such  judge, 
register,  or  other  officer,  or  a  false  or  counterfeit  seal 
of  the  court,  subscribed  or  attached  thereto,  knowing  such 
signature  or  seal  to  be  false  or  counterfeit,  shall  be  fined 
not  more  than  five  thousand  dollars  and  imprisoned  not 
more  than  five  years.     (R.  S.,  s.  5419.) 

§  131.  Bribery  of  a  judge  or  judicial  officer. — Who- 
ever, directly  or  indirectly,  shall  give  or  offer,  or  cause  to 


810  Federal  Criminal  Law  Procedure. 

be  given  or  offered,  any  money,  property,  or  value  of  any 
kind,  or  any  promise  or  agreement  therefor,  or  any  other 
bribe,  to  any  judge,  judicial  officer,  or  other  person  au- 
thorized by  any  law  of  the  United  States  to  hear  or  deter- 
mine any  question,  matter,  cause,  proceeding,  or  contro- 
versy, with  intent  to  influense  his  action,  vote,  opinion,  or 
decision  thereon,  or  because  of  any  such  action,  vote, 
opinion,  or  decision,  shall  be  fined  not  more  than  twenty 
thousand  dollars,  or  imprisoned  not  more  than  fifteen 
years,  or  both;  and  shall  forever  be  disqualified  to  hold 
anv  office  of  honor,  trust,  or  profit  under  the  United 
States.     (R.  S.,  s.  5449.) 

§  132.  Judge  or  judicial  officer  accepting  a  bribe,  etc. 
— Whoever,  being  a  judge  of  the  United  States,  shall  in 
any  wise  accept  or  receive  any  sum  of  money,  or  other 
bribe,  present,  or  reward,  or  any  promise,  contract,  obli- 
gation, gift,  or  security  for  the  payment  of  money,  or 
for  the  delivery  or  conveyance  of  anything  of  value, 
with  the  intent  to  be  influenced  thereby  in  any  opinion, 
judgment,  or  decree  in  any  suit,  controversy,  matter,  or 
cause  depending  before  him,  or  because  of  any  such 
opinion,  ruling,  decision,  judgment,  or  decree,  shall  be 
fined  not  more  than  twenty  thousand  dollars,  or  im- 
prisoned not  more  than  fifteen  years,  or  both;  and  shall 
be  forever  disqualified  to  hold  any  office  of  honor,  trust, 
or  profit  under  the  United  States.     (R.  S.,  s.  5499.) 

§  133.  Juror,  referee,  master,  etc.,  or  judicial  officer, 
etc.,  accepting  bribe. — Whoever,  being  a  juror,  referee, 
arbitrator,  appraiser,  assessor,  auditor,  master,  receiver, 
United  States  commissioner,  or  other  person  authorized 
by  any  law  of  the  United  States  to  hear  or  dotejinine  any 
(|iiestion,  matter,  cause,  controversy,  or  proceeding,  shall 
ask,  receive,  or  agree  to  receive,  any  money,  property,  or 
value  of  any  kind,  or  any  promise  or  agreement  therefor, 
upon  any  agreement  or  understanding  that  his  vote, 
opinion,  action,  judgment,  or  decision,  shall  be  influenced 
thereby,  or  because  of  any  such  vote,  opinion,  action, 
judgment,  or  decision,  shall  be  fined  not  more  than  two 
thousand  dollars,  or  imprisoned  not  more  than  two  years, 
or  both. 


Offenses  Against  Public  Justice.  811 

§  134.  Witness  accepting  bribe. — Whoever,  being,  or 
about  to  be,  a  witness  upon  a  trial,  bearing,  or  other  pro- 
ceeding, before  any  court  or  any  officer  authorized  by 
the  laws  of  the  United  States  to  hear  evidence  or  take 
testimony,  shall  receive,  or  agree  or  offer  to  receive,  a 
bribe,  upon  any  agreement  or  understanding  that  his 
testimony  shall  be  influenced  thereby,  or  that  he  will 
absent  himself  from  the  trial,  hearing,  or  other  proceed- 
ing, or  because  of  such  testimony,  or  such  absence,  shall 
be  fined  not  more  than  two  thousand  dollars,  or  im- 
prisoned not  more  than  two  years  or  both. 

§  135.  Intimidation  or  corruption  of  witness,  or  grand 
or  petit  juror,  or  officer. — Whoever  corruptly,  or  by 
threats  or  force,  or  by  any  threatening  letter-  or  com- 
munication, shall  endeavor  to  influence,  intimidate,  or 
impede  any  witness,  in  any  court  of  the  United  States 
or  before  any  United  States  commissioner  or  officer  act- 
ing as  such  commissioner,  or  any  grand  or  petit  juror, 
or  officer  in  or  of  any  court  of  the  United  States,  or  officer 
who  may  be  serving  at  any  examination  or  other  pro- 
ceeding before  any  United  States  commissioner  or  officer 
acting  as  such  commissioner,  in  the  discharge  of  his  duty, 
or  who  corruptly  or  by  threats  or  force,  or  by  any  threat- 
ening letter  or  threatening  communication,  shall  influence, 
obstruct,  or  impede,  or  endeavor  to  influence,  obstruct,  or 
impede,  the  due  administration  of  justice  therein,  shall 
be  fined  not  more  than  one  thousand  dollars,  or  impris- 
oned not  more  than  one  year  or  both.  (R.  S.,  ss.  5399, 
5404.) 

Fx     parte     Robinson,     19     Wall.,     505;  39     Fed.     Rep..     603;     In    re    Neagle,     39 

In     re     Savin,     131     U.     S.,     267;     In     re  Fed.    Rep.,     833;    U.     S.    v.    Thomas,    47 

Neagle,      135     U.     S.,     63;     Petibone     v.  Fed.    Rep.,    807;    U.    S.   v.   Armstrong     59 

U.  S.,  148  U.  S.,  197;  U.  S.  v.  Memphis  Fed.    Rep.,    568;    In    re    Brule,    71    ^ert. 

R.   Co.,   6    Fed.   Rep.,   237;   U.   S.   v.   Kil-  Rep.,    943;    U.    S.    v.    McLeod,    119    Fed. 

Patrick,     16     Fed.     Rep.,     765;     Sharon    v.  Rep.,    416;    U.    S.    v.    Bittmger,    15    Am. 

Hill,     24     Fed.     Rep.,     726;     U.     S.     v.  L.   Reg.    (N.    S.),    49. 
Polite.   35    Fed.   Rep.,   58;    U.    S.   v.   Kee, 

§  136.  Conspiracy  to  intimidate  party,  witness,  or 
juror. — If  two  or  more  persons  conspire  to  deter  by  force, 
intimidation,  or  threat,  any  party  or  witness  in  any  court 
of  the  United  States,  or  in  any  examination  before  United 
States  commissioner  or  officer  acting  as  such  commis- 
sioner, from  attending  such  court  or  examination,  or  from 
testifying  to  any  matter  pending  therein,  freely,  fully, 


812  Federal  Criminal  Law  Procedure. 

and  truthfully,  or  to  injure  such  party  or  witness  in  his 
person  or  property  on  account  of  his  having  so  attended 
or  testified,  or  to*  influence  the  verdict,  presentment,  or 
indictment  of  any  grand  or  petit  juror  in  any  such  court, 
or  to  injure  such  juror  in  his  person  or  property  on  ac- 
count of  any  verdict,  presentment,  or  indictment  lawfully 
assented  to  by  him,  or  on  account  of  his  being  or  having 
been  such  juror,  each  of  such  persons  shall  be  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  six  years,  or  both.     (R.  S.,  s.  5406.) 

Todd    v.    U.    S.,    158    U.    S.,    278;    U. 
S.  v.   Price,  96  Fed.   Rep.,   960. 

§  137.  Attempt  to  influence  juror.— Whoever  shall  at- 
tempt to  influence  the  action  or  decision  of  any  grand  or 
petit  juror  of  any  court  of  the  United  States  upon  any 
issue  or  matter  pending  before  such  juror,  or  before  the 
jury  of  which  he  is  a  member,  or  pertaining  to  his  duties, 
by  "writing  or  sending  to  him  any  letter  or  any  com- 
munication, in  print  or  writing,  in  relation  to  such  issue 
or  matter,  shall  be  fined  not  more  than  one  thousand  dol- 
lars, or  imprisoned  not  more  than  six  months,  or  both.  (R. 
S.,  s.  5405.) 

U.     S.     v.     Kilpatrick,     16     Fed.     Rep.. 
765. 

§  138.  Allowing  prisoner  to  escape. — Whenever  any 
marshal,  deputy  marshal,  ministerial  officer,  or  other  per- 
son has  in  his  custody  any  prisoner  by  virtue  of  process 
issued  under  the  laws  of  the  United  States  by  any  court, 
judge,  or  commissioner,  and  such  marshal,  deputy  mar- 
shal ministerial,  or  other  person  voluntarily  suffers  such 
prisoner  to  escape,  he  shall  be  fined  not  more  than  two 
thousand  dollars,  or  imprisoned  not  more  than  two  years, 
or  both.    (R.  S.,  s.  5409.) 

^  139.  Application  of  preceding  section. — The  pre- 
ceding section  shall  be  construed  to  apply  not  only  to 
cases  in  which  the  prisoner  who  escaped  was  charged 
or  found  guilty  of  an  offense  against  the  laws  of  the 
United  States,  and  to  cases  in  which  the  prisoner  may 
be  in  custody  charged  with  offenses  against  any  foreign 
government  with  which  the  United  States  have  treaties 
dt'  extradition,  but  also  to  cases  in  which  the  prisoner 
may  l»c  held  in  custody  for  removal  to  or  from  the  Philip- 


Offenses  Against  Public  Justice.  813 

pine  Islands  as  provided  by  law.    (R.  S.,  s.  5410.    6  Feb., 
1905,  33  Stat.,  L.,  698,  c.  454,  s.  2.) 

§  140.  Obstructing  process  or  assaulting  officer. — 
Whoever  shall  knowingly  and  willfully  obstruct,  resist,  or 
oppose  any  officer  of  the  United  States,  or  other 
person  duly  authorized,  in  serving,  or  attempting 
to  serve  or  execute,  any  mesne  process  or  war- 
rant, or  any  rule  or  order,  or  any  other  legal 
or  judicial  writ  or  process  of  any  court  of  the 
United  States,  or  United  States  commissioner,  or  shall 
assault,  beat,  or  wound  any  officer  or  other  person  duly 
authorized,  knowing  him  to  be  such  officer,  or  other  per- 
son so  duly  authorized,  in  serving  or  executing  any  such 
writ,  rule,  order,  process,  warrant,  or  other  legal  or  judi- 
cial writ  or  process,  shall  be  fined  not  more  than  three 
hundred  dollars  and  imprisoned  not  more  than  one  year. 
(R.  S.,  s.  5398.) 

U.    S.    v.    Bachelder,    2    Gall.,    15,    24  Dill.,    212,    27    Fed.    Cas.,    1161;    U.    S. 

Fed.   Cas.,  931;   U.   S.  v.  Fears,   3   Wood,  v.     Slaymaker,     4    Wash.,     169,    27    Fed. 

510,     25      Fed.     Cas.,     1053;      U.      b.     \  Cas.,    1127;    U.   S.   v.    Stowell,    Curt.,    153, 

Hudson,    1    Haskell,    527,    28    Fed.    Cas..  27    Fed.    Cas.,    1350;    U.    S.    v.    Tinkle- 

406;    U.    S.    v.    Keen,    5    Mason,    453,    26  paugh,     3     Blatch.,     425,     28     Fed.     Cas., 

Fed.     Cas.,     693;     U.     S.    v.     Lowery,     2  193;    U.    S.   v.    Huff,    13    Fed.    Rep.,    630, 

Wash.,    169,    26    Fed.    Cas.,    1008;    U.    S.  639;   U.   S.  v.  Martin,   17  Fed.   Rep.,   150; 

v.    Lukins,    3    Wash.,    335,    26    Fed.    Cas..  U.     S.     v.     Terry,     41     Fed.     Rep.,     771; 

1011;    U.    S.   v.   McDonald,    S   Biss.,    439.  Blake     v.    U.     S.,     71     Fed.    Rep.,     286; 

26    Fed.    Cas.,    1074;    U.    S.    v.    Smith,    1  U.    S.    v.   Mullin,    71    Fed.    Rep.,    682. 

§  141.  Rescuing,  etc.,  prisoner;  concealing,  etc.,  per- 
son for  whom  warrant  has  issued. — Whoever  shall  res- 
cue or  attempt  to  rescue,  from  the  custody  of  any  officer 
or  person  lawfully  assisting  him,  any  person  arrested 
upon  a  warrant  or  other  process  issued  under  the  pro- 
visions of  any  law  of  the  United  States,  or  shall,  directly 
or  indirectly,  aid,  abet,  or  assist  any  person  so  arrested 
to  escape  from  the  custody  of  such  officer  or  other  per- 
son, or  shall  harbor  or  conceal  any  person  for  whose 
arrest  a  warrant  or  process  has  been  so  issued,  so  as  to 
prevent  his  discovery  and  arrest,  after  notice  or  knowl- 
edge of  the  fact  that  a  warrant  or  process  has  been  issued 
for  the  apprehension  of  such  person,  shall  be  fined  not 
more  than  one  thousand  dollars,  or  imprisoned  not  more 
than  six  months,  or  both.    (R.  S.,  ss.  5401,  5516.) 

§  142.  Rescue  at  execution. — Whoever,  by  force,  shall 
set  at  liberty  or  rescue  any  person  found  guilty  in  any 
court  of  the  United  States  of  any  capital  crime,  while 


814  Federal  Criminal  Law  Procedure. 

going  to  execution  or  during  execution,  shall  be  fined 
not  more  than  twenty-five  thousand  dollars  and  impris- 
oned not  more  than  twenty-five  years.     (R.  S.,  s.  5400.) 

§  143.  Rescue  of  prisoner. — Whoever,  by  force,  shall 
set  at  liberty  or  rescue  any  person  who,  before  conviction, 
stands  committed  for  any  capital  crime;  or  whoever,  by 
force,  shall  set  at  liberty  or  rescue  any  person  committed 
for  or  convicted  of  any  offense  other  than  capital,  shall  be 
fined  not  less  than  five  hundred  dollars  and  imprisoned 
not  more  than  one  year.     (R.  S.,  s.  5401.) 

§  144.  Rescue  of  body  of  executed  offender. — Who- 
ever, by  force,  shall  rescue  or  attempt  to  rescue,  from 
the  custodv  of  any  marshal  or  his  officer,  the  dead  bodv 
of  an  executed  offender,  while  it  is  being  conveyed  to  a 
place  of  dissection,  as  provided  by  section  three  hundred 
and  thirty-one  hereof,  or  by  force  shall  rescue  or  attempt 
to  rescue  such  body  from  the  place  where  it  has  been  de- 
posited for  dissection  in  pursuance  of  that  section,  shall 
be  fined  not  more  than  one  hundred  dollars,  or  imprisoned 
not  more  than  one  year,  or  both.     (R.  S.,  s.  5402.) 

§  145.  Extortion  by  internal-revenue  informers. — 
Whoever  shall,  under  a  threat  of  informing,  or  as  a 
consideration  for  not  informing,  against  any  violation 
of  any  law  of  the  United  States,  demand  or  receive  any 
money  or  other  valuable  thing,  shall  be  fined  not  more 
than  two  thousand  dollars,  or  imprisoned  not  more  than 
one  year,  or  both.     (R.  S.,  s.  5484.) 

§  146.  Misprision  of  felony. — Whoever,  having  knowl- 
edge of  the  actual  commission  of  the  crime  of  murder 
or  other  felony  cognizable  by  the  courts  of  the  United 
States,  conceals  and  does  not  as  soon  as  may  be  disclose 
and  make  known  the  same  to  some  one  of  the  judges  or 
other  persons  in  civil  or  military  authority  under  the 
dollars,  or  imprisoned  not  more  than  three  years,  or  both. 
United  States,  shall  be  fined  not  more  than  five  hundred 
(R.  S.,  s.  5390.) 


CHAPTER   SEVEN. 

OFFENSES  AGAINST  THE   CURRENCY,   COINAGE,   ETC. 

§  147.  "Obligation    or   other   security   of  the   United    States"   defined. 

148.  Forging  or  counterfeiting  United  States  securities. 

149.  Counterfeiting    national-bank    notes. 

150.  Using  plates  to  print  notes  without  authority,  etc. 

151.  Passing,  selling,  concealing,  etc.,  Gorged  obligations. 

152.  Taking  impressions  of  tools,  implements,  etc. 

153.  Having  in  possession  unlawfully  such  impressions. 

154.  Buying,  selling,  or  dealing  in  forged  bonds,  notes,  etc. 

155.  Secreting    or    removing    tools    or    material    used    for    printing 

bonds,   notes,   stamps,  etc. 

156.  Counterfeiting   notes,  bonds,   etc.,   of   foreign   governments. 

157.  Passing  such  forged  notes,  bonds,  etc. 

158.  Counterfeiting   notes   of   foreign   banks. 

159.  Passing  such  counterfeit  bank  notes. 

160.  Having  in  possession  such  forged  notes,  bonds,  etc. 

161.  Having  unlawfully  in  possession  or  using  plates  for  such  notes, 

bonds,  etc. 

162.  Connecting  parts  of  different  instruments. 

163.  Counterfeiting  gold  or  silver  coins  or  bars. 

164.  Counterfeiting   minor  coins. 

165.  Falsifying,  mutilating,  or  lightening  coinage. 

166.  Debasement  of  coinage  by  officers  of  the  mint. 

167.  Making  or  uttering  coins  in   resemblance  of  money. 

168.  Making  or  issuing  devices  of  minor  coins. 

169.  Counterfeiting,  etc.,  dies  for  coins  of  United  States 

170.  Counterfeiting,   etc.,    dies   for  foreign   coins. 

171.  Making,    importing,    or    having    in    possession    tokens,    prints, 

etc.,  similar  to  United  States  or  foreign  coins. 

172.  Counterfeit  obligating  securities,  coins,  or  material  for  counter- 

feiting, to  be  forfeited. 

173.  Issuance    of    search    warrant    for    suspected    counterfeits,    etc., 

forfeiture. 

174.  Circulating  bills   of   expired   corporations. 

175.  Imitating    national-bank    notes    with    printed    advertisements 

thereon. 

176.  Mutilating  or  defacing  national-bank  notes. 

177.  Imitating  United   States  securities  or  printing  business  cards 

on   them. 

178.  Notes  of  less  than  one  dollar  not  to  be  issued. 

§  147.     "Obligation  or   other   security  of  the  United 
States."  denned. — The   words   "obligation   or   other   se- 

(815) 


816  Federal  Criminal  Law  Procedure. 

curity  of  the  United  States"  shall  be  held  to  mean  all 
bonds,  certificates  of  indebtedness,  national  bank  cur- 
rency, coupons,  United  States  notes,  Treasury  notes,  gold 
certificates,  silver  certificates,  fractional  notes,  certifi- 
cates of  deposit,  bills,  checks,  or  drafts  for  money,  drawn 
by  or  upon  authorized  officers  of  the  United  States, 
stamps  and  other  representatives  of  value,  of  whatever 
denomination,  which  have  been  or  may  be  issued  under 
any  act  of  Congress.  (R.  S.,  s.  5413.  28  Feb.,  1878,  20 
Stat.  L.,  26  c.  20,  s.  3;  1  Supp.,  152. 

U.  S.  v.  Bennett,  17  Blatch.,  357,  Houghton,  7  Fed.  Rep.,  657,  8  Fed. 
24  Fed.  Cas.,  1107;  U.  S.  v.  Trout,  4  Rep.,  897;  U.  S.  v.  Albert,  45  Feu. 
Biss.,    105,   28    Fed.    Cas.,    223;    Ex   parte        Rep.,    552. 

§  148.  Forging  or  counterfeiting  United  States  secu- 
rities.— Whoever,  with  intent  to  defraud,  shall  falsely 
make,  forge,  counterfeit,  or  alter  any  obligation  or  other 
security  of  the  United  States  shall  be  fined  not  more  than 
five  thousand  dollars  and  imprisoned  not  more  than  fif- 
teen years.     (R.  S.,  s.  5414.) 

U.     S.    v.    Coppersmith    4    Fed.     Rep..  S.  v.     Owens,    37    Fed.     Rep.,     112;     U. 

198;    U.    S.    v.    Field,    16    Fed.    Rep.,    778;  S.  v.    Albert,    45     Fed.    Rep.,    552;    Neall 

U.    S.    v.    Crecilius,    34    Fed.    Rep.,    30;  v.  U.     S.,     118    Fed.     Rep.    699. 
U.    S.    v.    Jolly,    37    Fed.    Rep.,    108;    U. 

§  149.  Counterfeiting  national-bank  notes. — Whoever 
shall  falsely  make,  forge,  or  counterfeit,  or  cause  or  pro- 
cure to  be  made,  forged,  or  counterfeited,  or  shall  will- 
ingly aid  or  assist  in  falsely  making,  forging,  or  counter- 
feiting, any  note  in  imitation  of,  or  purporting  to  be  an 
imitation  of,  the  circulating  notes  issued  by  any  bank- 
ing association  now  or  hereafter  authorized  and  acting 
under  the  laws  of  the  United  States;  or  whoever  shall 
pass,  utter,  or  publish,  or  attempt  to  pass,  utter,  or  pub- 
lish, any  false,  forged,  or  counterfeited  note,  purporting 
to  be  issued  by  any  such  association  doing  a  banking 
business,  knowing  the  same  to  be  falsely  made,  forged,  or 
counterfeited;  or  whoever  shall  falsely  alter,  or  cause  or 
procure  to  be  falsely  altered,  or  shall  willingly  aid  or  as- 
sist in  falsely  altering,  any  such  circulating  notes,  or  shall 
pass,  utter,  or  publish,  or  attempt  to  pass,  utter  or  pub- 
lish as  true,  any  falsely  altered  or  spurious  circulating 
note  issued,  or  purporting  to  have  been  issued,  by  any 
such  hanking  association,  knowing  the  same  to  be  falsely 
altered    or    spurious,    shall   be   fined  not  more  than  one 


Offenses  Against  the  Currency,  Coinage,  Etc.  817 

thousand   dollars   and   imprisoned  not  more  than  fifteen 
years.    (R.  S.,  s.  5415.) 

U.    S.    v.    Bennett,    17    Blatch.,    357,    24  Fed.     Rep.,     751;     Logan    v.     U.     S.,     123 

Fed.     Cas.,     1107;     Ex     parte     Houghton,  Fed.     Rep.,     291;     Thompson     v.     U.     S., 

7    Fed.    Rep.,    657;    U.    S.    v.    Crecilius.  144     Fed.     Rep.,     14;     Gallagher     v.     U. 

34    Fed.    Rep.,    30;    U.    S.    v.    Owens,    37  S.,     144    Fed.    Rep.,    87. 
Fed.    Rep.,     112;     U.    S.    v.    Wilson,    44 

§  150.  Using  plates  to  print  notes  without  authority, 
etc. — Whoever,  having  control,  custody,  or  possession  of 
any  plate,  stone,  or  other  thing,  or  any  part  thereof,  from 
which  has  been  printed,  or  which  may  be  prepared  by  di- 
rection of  the  Secretary  of  the  Treasury  for  the  purpose 
of  printing,  any  obligation  or  other  security  of  the  Unit- 
ed States,  shall  use  such  plate,  stone,  or  other  thing,  or 
any  part  thereof,  or  knowingly  suffer- the  same  to  be  used 
for  the  purpose  of  printing  any  such  or  similar  obliga- 
tion or  other  security,  or  any  part  thereof,  except  as  may 
be  printed  for  the  use  of  the  United  States  by  order  of 
the  proper  officer  thereof;  or  whoever  by  any  way,  art, 
or  means  shall  make  or  execute,  or  cause  or  procure  to 
be  made  or  executed,  or  shall  assist  in  making  or  execut- 
ing any  plate,  stone,  or  other  thing  in  the  likeness  of  any 
plate  designated  for  the  printing  of  such  obligation  or 
other  security;  or  whoever  shall  sell  any  such  plate, 
stone,  or  other  thing,  or  bring  into  the  United  States  or 
any  place  subject  to  the  jurisdiction  thereof,  from  any 
foreign  place,  any  such  plate,  stone,  or  other  thing,  ex- 
cept under  the  direction  of  the  Secretary  of  the  Treasury 
or  other  proper  officer,  or  with  any  other  intent,  in  either 
case,  than  that  such  plate,  stone,  or  other  thing  be  used 
for  the  printing  of  the  obligations  or  other  securities  of 
the  United  States;  or  whoever  shall  have  in  his  control, 
custody,  or  possession  any  plate,  stone,  or  other  thing  in 
any  manner  made  after  or  in  the  similitude  of  any  plate, 
stone,  or  other  thing,  from  which  any  such  obligation  or 
other  security  has  been  printed,  with  intent  to  use  such 
plate,  stone,  or  other  thing,  or  to  suffer  the  same  to  be 
used  in  forging  or  counterfeiting  any  such  obligation  or 
other  security,  or  any  part  thereof;  or  whoever  shall  have 
in  his  possession  or  custody,  except  under  authority  from 
the  Secretary  of  the  Treasury  or  other  proper  officer,  any 
obligation  or  other  security  made  or  executed,  in  whole 
or  in  part,  after  the  similitude  of  any  obligation  or  other 

52 


818  Fedeeal.  Ceiminal  Law  Peocedube. 

security  issued  under  the  authority  of  the  United  States, 
with  intent  to  sell  or  otherwise  use  the  same;  or  whoever 
shall  print,  photograph,  or  in  any  other  manner  makes  or 
execute,  or  cause  to  be  printed,  photographed,  made,  or 
executed,  or  shall  aid  in  printing,  photographing,  mak- 
ing, or  executing  any  engraving,  photograph,  print,  or 
impression  in  the  likeness  of  any  such  obligation  or  other 
security,  or  any  part  thereof,  or  shall  sell  any  such  en- 
graving, photograph,  print,  or  impression,  except  to  the 
United  States,  or  shall  bring  into  the  United  States  or 
any  place  subject  to  the  jurisdiction  thereof,  from  any 
foreign  place  any  such  engraving,  photograph,  print,  or 
impression,  except  by  direction  of  some  proper  officer  of 
the  United  States;  or  whoever  shall  have  or  obtain  in  his 
control  or  possession,  after  a  distinctive  paper  has  been 
adopted  by  the  Secretary  of  the  Treasury  for  the  obliga- 
tions and  other  securities  of  the  United  States,  any  simi- 
lar paper  adapted  to  the  making  of  any  such  obligation 
or  other  security,  except  under  the  authority  of  the  Sec- 
retary of  the  Treasury  or  some  other  proper  officer  of  the 
United  States,  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  fifteen  vears,  or 
both.    (R.  S.,  s.  5430.) 

Rx     parte    Holcomb,     2     Dill.,     392,     12  Fed.  Rep.,    624;    U.    S.    v.    Fitzgerald,    91 

Fed.    Cas.,    328;    U.    S.    v.    Williams,    14  Fed.  Rep.,    374;    U.    S.    v.    Barnett,  111 

Fed.    Rep.,     550;    Re     Wilson,    18     Fed.  Fed.  Rep.,    369;    U.    S.    v.    Conners,  111 

Rep.,   33;   U.    S.  v.   Smith,   40   Fed.   Rep.,  Fed.  Rep.,     734;     U.     S.    v.    Pitts.,  112 

755;    U.    S.    v.    Sprague,    11    Biss.,    376,  Fed.  Rep.,     522;     Krakowski    v.     U.  S., 

48    Fed.    Rep.,    828;    U.    S.    v.    Stevens,  161    Fed.    Rep.,    88. 
52    Fed.    Rep.,    120;    U.    S.    v.    Kuhl,    85 

§  151.  Passing,  selling,  concealing,  etc.,  forged  obli- 
gations.— "Whoever,  with  intent  to  defraud,  shall  pass, 
utter,  publish,  or  sell,  or  attempt  to  pass,  utter,  publish, 
or  sell,  or  shall  bring  into  the  United  States  or  any  place 
subject  to  the  jurisdiction  thereof,  with  intent  to  pass, 
publish,  utter,  or  sell,  or  shall  keep  in  possession  or  con- 
ceal with  like  intent,  any  falsely  made,  forged,  counter- 
feited, or  altered  obligation  or  other  security  of  the  Unit- 
ed  States,  shall  be  fined  not  more  than  five  thousand  dol- 
lars and  imprisoned  not  more  than  fifteen  vears.  (R.  S. 
-  5431.) 

U.    S.    v.    Marcus,    53    U.    S.,    784;    U.  Cas.,    80;    U.    S.    v.    Trout,    4   Biss.,    105, 

S.     v.     Carll,     105,     U.     S.,     611:     Dunbar  28    Fed.    Cas.,    223;    U.    S.    v.    Williams, 

v.    U.    S.,     156    U.    S..    185;    U.    S.    v.  4    Biss.,    302,    28    Fed.    Cas.,    635;    U.    S. 

Nelson,     1     Abb.     U.     S.,     135,     27     Fed.  v.    Jolly,    37    Fed.    Rep.,    108;    U.    S.    v. 


Offenses  Against  the  Currency,  Coinage,  Etc.  819 

Owens,    37    Fed.  Rep.,  112,  U.  S.  v.  Howell,    64    Fed.    Rep.,    110;    U.    S.    v. 

Clarke,     38     Fed.  Rep.,  500;  U.  S.  v.  Tarants,     74    Fed.    Rep.,    219;     U.     S.    v. 

Holmes,     40    Fed.  Rep.,  750;  U.  S.  v.  Beebe,    149    Fed.    Rep.,    618. 

Albert,    45     Fed.  Rep.,  552;  U.  S.  v. 

§  152.  Taking  impressions  of  tools,  implements,  etc. 
Whoever,  without  authority  from  the  United  States,  shall 
take,  procure,  or  make,  upon  lead,  foil,  wax,  plaster, 
paper,  or  any  other  substance  or  material,  an  impression, 
stamp,  or  imprint  of,  from,  or  by  the  use  of  any  bedplate, 
bedpiece,  die,  roll,  plate,  seal,  type  or  other,  tool,  imple- 
ment, instrument,  or  thing  used  or  fitted  or  intended  to 
be  used  in  printing,  stamping,  or  impressing,  or  in  mak- 
ing other  tools,  implements,  instruments,  or  things  to  be 
used  or  fitted  or  intended  to  be  used  in  printing,  stamp- 
ing, or  impressing  any  kind  or  description  of  obligation 
or  other  security  of  the  United  States  now  authorized  or 
hereafter  to  be  authorized  by  the  United  States,  or  cir- 
culating note  or  evidence  of  debt  of  any  banking  associa- 
tion under  the  laws  thereof,  shall  be  fined  not  more  than 
five  thousand  dollars  or  imprisoned  not  more  than  ten 
years,  or  both.    (R.  S.,  s.  5432.) 

U.    S.    v.    Bennett,    17    Blatch.,    357,    24 
Fed.    Cas.,    1107. 

§  153.  Having  in  possession  unlawfully  such  impres- 
sions.— Whoever,  with  intent  to  defraud,  shall  have  in  his 
possession,  keeping,  custody,  or  control,  without  author- 
ity from  the  United  States,  any  imprint,  stamp,  or  im- 
pression, taken  or  made  upon  any  substance  or  material 
whatsoever,  of  any  tool,  implement,  instrument,  or  thing, 
used,  or  fitted  or  intended  to  be  used,  for  any  of  the  pur- 
poses mentioned  in  the  preceding  section;  or  whoever, 
with  intent  to  defraud,  shall  sell,  give,  or  deliver  any  such 
imprint,  stamp,  or  impression  to  any  other  person,  shall 
be  fined  not  more  than  five  thousand  dollars,  or  imprison- 
ed not  more  than  ten  years,  or  both.     (R.  S.,  s.  5433.) 

§  154.  Buying,  selling,  or  dealing  in  forged  bonds, 
notes,  etc. — Whoever  shall  buy,  sell,  exchange,  transfer, 
receive,  or  deliver,  any  false,  forged,  counterfeited,  or 
altered  obligation  or  other  security  of  the  United  States, 
or  circulating  note  of  any  banking  association  organized 
or  acting  under  the  laws  thereof,  which  has  been  or  may 
hereafter  be  issued  by  virtue  of  any  act  of  Congress,  with 
the  intent  that  the  same  be  passed,  published,  or  used  as 


820  Federal  Criminal  Law  Procedure. 

true  and  genuine,  shall  be  fined  not  more  than  five  thous- 
and dollars,  or  imprisoned  not  more  than  ten  years,  or 
both.    (R.  S.,  s.  5434.) 

§  155.  Secreting  or  removing  tools  or  material  used 
for  printing  bonds,  notes,  stamps,  etc. — Whoever,  without 
authority  from  the  United  States,  shall  secrete  within, 
embezzle,  or  take  and  carry  away  from  any  building, 
room,  office,  apartment,  vault,  safe,  or  other  place  where 
the  same  is  kept,  used,  employed,  placed,  lodged,  or  de- 
posited by  authority  of  the  United  States,  any  bedpiece, 
bedplate,  roll,  plate,  die,  seal,  type,  or  other  tool,  imple- 
ment or  thing  used  or  fitted  to  be  used  in  stamping  or 
printing  or  in  making  some  other  tool  or  implement  used 
or  fitted  to  be  used  in  stamping  or  printing,  any  kind  or 
description  of  bond,  bill,  note,  certificate,  coupon,  post- 
tage  stamp,  revenue  stamp,  fractional  currency  note, 
or  other  paper,  instrument,  obligation,  devise,  or  doc- 
ument, now  or  hereafter  authorized  by  law  to  be 
printed,  stamped,  sealed,  prepared,  issued,  uttered,  or 
put  in  circulation  on  behalf  of  the  United  States;  or 
whoever,  without  such  authority,  shall  so  secrete,  em- 
bezzle, or  take  and  carry  away  any  paper,  parchment, 
or  other  material  prepared  and  intended  to  be  used  in 
the  making  of  any  such  papers,  instruments,  obliga- 
tions, devices,  or  documents;  or  whoever,  without  such 
authority,  shall  so  secrete,  embezzle,  or  take  and  carry 
away  any  paper,  parchment,  or  other  material  printed 
or  stamped,  in  whole  or  part,  and  intended  to  be  pre- 
pared, issued,  or  put  in  circulation  on  behalf  of  the 
United  States  as  one  of  the' papers,  instruments,  or  ob- 
ligations hereinbefore  named,  or  printed  or  stamped,  in 
whole  or  part,  in  the  similitude  of  any  such  paper,  instru- 
ment, or  obligation,  whether  intended  to  issue  or  put  the 
same  in  circulation  or  not,  shall  be  fined  not  more  than 
five  thousand  dollars,  or  imprisoned  not  more  than  ten 
years,  or  both.    (R.  S.,  s.  5453.) 

.:  L56.  Counterfeiting  notes,  bonds,  etc.,  of  foreign 
governments. — Whoever,  within  the  United  States  or  any 
place  subject  to  the  jurisdiction  thereof,  with  intent  to 
defraud,  shall  falsely  make,  alter,  forge,  or  counterfeit 
any  bond,  certificate,  obligation,  or  other  security  in  imi- 


Offenses  Against  the  Currency,  Coinage,  Etc.  821 

tation  of,  or  purporting  to  be  an  imitation  of,  any  bond, 
certificate,  obligation,  or  other  security  of  any  foreign 
government,  issued  or  put  fourth  under  the  authority  of 
such  foreign  government,  or  any  treasury  note,  bill  or 
promise  to  pay  issued  by  such  foreign  government,  and 
intended  to  circulate  as  money,  either  by  law,  order,  or  de- 
cree of  such  foreign  government;  or  whoever  shall  cause 
or  procure  to  be  so  falsely  made,  altered,  forged,  or  count- 
erfeited, or  shall  knowingly  aid  or  assist  in  making,  al- 
tering, forging,  or  counterfeit ig,  any  such  bond,  certifi- 
cate, obligation,  or  other  security,  or  any  such  treasury 
note,  bill,  or  promise  to  pay,  intended  as  aforesaid  to  cir- 
culate as  money,  shall  be  fined  not  more  than  five  thou- 
sand dollars  and  imprisoned  not  more  than  five  years. 
(16  May,  1884,  23  Stat.  L.,  22,  c.  52,  s.  1;  1  Supp.,  429.) 

U.    S.   v.    Arjona,    120   U.    S.,   479;    U.        Rep.,     200;     Bliss     v.     U.     S.     105     Fed. 
S.  v.   White,   25   Fed.   Rep.,   716,  27   Fed.        Rep.,    508. 

§  157.  Passing  such  forged  notes,  bonds,  etc. — Who- 
ever, within  the  United  States  or  any  place  subject  to 
the  jurisdiction  thereof,  knowingly  and  with  intent  to  de- 
fraud, shall  utter,  pass,  or  put  off,  in  payment  or  negotia- 
tion, any  false,  forged,  or  counterfeited  bond,  certificate, 
obligation,  security,  treasury  note,  bill,  or  promise  to  pay, 
mentioned  in  the  section  last  preceding,  whether  the  same 
was  made,  altered,  forged,  or  counterfeited  within  the 
United  States  or  not,  shall  be  fined  not  more  than  three 
thousand  dollars  and  imprisoned  not  more  than  three 
years.  (16  May  1884,  23  Stat.  L.,  23,  c.  52,  s.  2;  1  Supp. 
429.) 

§  158.  Counterfeiting  notes  on  foreign  banks. — Who- 
ever, within  the  United  States  or  any  place  subject  to  the 
jurisdiction  thereof,  with  intent  to  defraud,  shall  false- 
ly make,  alter,  forge  or  counterfeit,  or  cause  or  procure 
to  be  so  falsely  made,  altered,  forged,  or  counterfeited, 
or  shall  knowingly  aid  and  assist  in  the  false  making,  al- 
tering, forging,  or  counterfeiting  of  any  bank  note  or  bill 
issued  by  a  bank  or  corporation  of  any  foreign  country, 
and  intended  by  the  law  or  usage  of  such  foreign  country 
to  circulate  as  money,  such  bank  or  corporation  being 
authorized  by  the  laws  of  such  country,  shall  be  fined  not 
more  than  two  thousand  dollars  and  imprisoned  not  more 


822  Federal  Criminal  Law  Procedure. 

than  two  years.     (16  May,  1884,  23  Stat.  L.,  23,  c.  52,  s.  3; 
1  Supp.,  429.) 

U.    S.    v.    Arjona,    120    U.    S.,    479. 

§  159.  Passing  such  counterfeit  bank  notes. — Who- 
ever, within  the  United  States  or  any  place  subject  to  the 
jurisdiction  thereof,  shall  utter,  pass,  put  off,  or  tender 
in  payment,  with  intent  to  defraud,  any  such  false,  forged 
altered,  or  counterfeited  bank  note  or  bill,  as  mentioned  in 
the  preceding  section,  knowing  the  same  to  be  so  false, 
forged,  altered,  and  [or]  counterfeited,  whether  the  same 
was  made,  forged,  altered,  or  counterfeited  within  the 
United  States  or  not,  shall  be  fined  not  more  than  one 
thousand  dollars  and  imprisoned  not  more  than  one  vear. 
(16  May,  1884,  23  Stat,  L.,  23,  c.  52,  s.  4;  1  Supp.,  429.) 

§  160.  Having  in  possession  such  forged  notes,  bonds, 
etc. — Whoever,  within  the  United  States  or  any  place 
subject  to  the  jurisdiction  thereof,  shall  have  in  his  pos- 
session any  false,  forged,  or  counterfeit  bond,  certificate, 
obligation,  security.  Treasury  note,  bill,  promise  to  pay, 
bank  note,  or  bill  issued  by  a  bank  or  corporation  of  any 
foreign  country,  with  intent  to  utter,  pass,  or  put  off  the 
same,  or  to  deliver  the  same  to  any  other  person  with 
intent  that  the  same  may  thereafter  be  uttered,  passed, 
or  put  off  as  true,  or  shall  knowingly  deliver  the  same  to 
any  other  person  with  such  intent,  shall  be  fined  not  more 
than  one  thousand  dollars  and  imprisoned  not  more  than 
one  year.  (16  May,  1884,  23  Stat.  L.,  23,  c.  52,  s.  5;  1 
Supp.,  429.) 

§  161.  Having  unlawfully  in  possession  or  using 
plates  for  such  notes,  bonds,  etc. — Whoever,  within  the 
United  States  or  any  place  subject  to  the  jurisdiction 
thereof,  except  by  lawful  authority,  shall  have  control, 
custody,  or  possession  of  any  plate,  stone,  or  other  thing, 
or  any  part  thereof,  from  which  has  been  printed  or  may 
be  printed  any  counterfeit  note,  bond,  obligation,  or  other 
security,  in  whole  or  in  part  of  any  foreign  government, 
bank,  or  corporation,  or  shall  use  such  plate,  stone,  or 
other  thing,  or  knowingly  permit  or  suffer  the  same  to  be 
used  in  counterfeiting  such  foreign  obligations,  or  any 
pari  thereof;  or  whoever  shall  make  or  engrave,  or  cause 
or  procure  to  be  made  or  engraved,  or  shall  assist  in  mak- 


Offenses  Against  the  Currency,  Coinage,  Etc.  823 

ing  or  engraving,  any  plate,  stone,  or  other  thing,  in  the 
likeness  or  similitude  of  any  plate,  stone,  or  other  thing 
designated  for  the  printing  of  the  genuine  issues  of  the 
obligations  of  any  foreign  government,  bank,  or  corpora- 
tion; or  whoever  shall  print,  photograph,  or  in  any  other 
manner  make,  execute,  or  sell,  or  cause  to  be  printed, 
photographed,  made,  executed,  or  sold,  or  shall  aid  in 
printing,  photographing,  making,  executing,  or  selling, 
any  engraving,  photograph,  print,  or  impression  in  the 
likeness  of  any  genuine  note,  bond,  obligation,  or  other  se- 
curity, or  any  part  thereof,  of  any  foreign  government, 
bank  or  corporation;  or  whoever  shall  bring  into  the 
United  States  or  any  place  subject  to  the  jurisdiction 
thereof,  any  counterfeit  plate,  stone,  or  other  thing,  or 
engraving,  photograph,  print,  or  other  impressions  of 
the  notes,  bonds,  obligations  or  other  securities  of  any 
foreign  government,  bank,  or  corporation,  shall  be  fined 
not  more  than  five  thousand  dollars,  or  imprisoned  not 
more  than  five  vears,  or  both.  (16  May,  1884,  23  Stat. 
L.,  23,  c.  52,  s.  6;  1  Supp.,  429.) 

U.   S.  v.   Arjona,   120   U.    S.,   479. 

§  162.  Connecting  parts  of  different  instruments. — 
"Whoever  shall  so  place  or  connect  together  different  parts 
of  two  or  more  notes,  bills,  or  other  genuine  instruments 
issued  under  the  authority  of  the  United  States,  or  by  any 
foreign  government,  or  corporation,  as  to  produce  one  in- 
strument with  intent  to  defraud,  shall  be  deemed  guilty  of 
forgery  in  the  same  maimer  as  if  the  parts  so  put  together 
were  falsely  made  or  forged,  and  shall  be  fined  net  more 
than  one  thousand  dollars,  or  imprisoned  not  more  than 
five  years,  or  both. 

§  163.  Counterfeiting  gold  or  silver  coins,  or  bars. — 
Whoever  shall  falsely  make,  forge,  or  counterfeit,  or  cause 
or  procure  to  be  falsely  made,  forged,  or  counterfeited,  or 
shall  willingly  aid  or  assist  in  falsely  making,  forging,  or 
counterfeiting  any  coin  or  bars  in  resemblance  or  simil- 
tude  of  the  gold  or  silver  coins  or  bars  which  have  been, 
or  hereafter  may  be,  coined  or  stamped  at  the  mints  and. 
assays  offices  of  the  United  States,  or  in  resemblance  or 
similitude  of  any  foreign  gold  or  silver  coin  which  by  law 
is,  or  hereafter  may  be,  current  in  the  United  States,  or  are 


824  Federal  Criminal  Law  Procedure. 

in  actual  use  and  circulation  as  money  within  the  United 
States;  or  whoever  shall  pass,  utter,  publish,  or  sell,  or  at- 
tempt to  pass,  utter,  publish,  or  sell  or  bring  into  the  Unit- 
ed States  or  any  place  suject  to  the  jurisdiction  thereof, 
from  any  foreign  place,  knowing  the  same  to  be  false, 
forged,  or  counterfeit,  with  intent  to  defraud  any  body 
politic  or  corporate,  or  any  person  or  persons  whomso- 
ever, or  shall  have  in  his  possession  any  such  false,  forged, 
or  counterfeited  coin  or  bars,  knowing  the  same  to  be 
false,  forged  or  counterfeited,  with  intent  to  defraud  any 
body  politic  or  corporate  or  any  person  or  persons  whom- 
soever, shall  be  fined  not  more  than  five  thousand  dollars 
and  imprisoned  not  more  than  ten  years.  (R.  S.,  s.  5457. 
16  Jan.,  1877,  19  Stat.  L.,  223,  c.  24;  1  Supp.,  128.) 

U.     S.    v.    Gardner,     10    Pet.,    618;    U.  v.    Abrams,     18    Fed.    Rep.,    823;     U.     S., 

S.    v.     Marigold,     9     How..     560;     U.     S.  v.     Russell,    22     Fed.     Rep.,     390;     U.     S. 

v.     Petit.     114    U.     S.,     429;     Statler    v.  v.    Hopkins,    26    Fed.    Rep.,    443;    U.    S. 

U.   S.,   157   U.    S..   277;   U.   S.   v.   Burns,  v.     Otey.    31     Fed.    Rep.,     68;    Ex     parte 

5    McLean,    23,    24    Fed.    Cas..    1313;    U.  Waterman,     33     Fed.     Rep.,     29;     U.     S. 

S.    v.    King.    5    McLean,    208,    26     Fed.  v.    Owens,    37    Fed.    Rep.,    112;    U.    S.    v. 

Cas..    787;    LT.    S.    v.    Morrow,    4    Wash.,  Lehman,     39     Fed.     Rep.,     768;     Ex    parte 

C.    C,    733,    26    Fed.    Cas..    1352;    U.    S.  Ceisler,     50    Fed.    Rep.,    411;     U.    S.    v. 

v.    Coppersmith,    4    Fed.    Rep.,     198;    U.  Howell,    64    Fed.    Rep.,    110;    U.    S.    v. 

S.    v.    Yates,    6    Fed.    Rep.,    861;    U.     S.  Bicksler,     1     Mackey,    341. 

§  164.  Counterfeiting  minor  coins. — Whoever  shall 
falsely  make,  forge,  or  counterfeit,  or  cause  or  procure  to 
be  falsely  made,  forged,  or  counterfeited,  or  shall  willing- 
ly aid  or  assist  in  falsely  making,  forging,  or  counterfeit- 
ing any  coin  in  the  resemblance  or  similitude  of  any  of  the 
minor  coins  which  have  been,  or  hereafter  may  be,  coined 
at  the  mints  of  the  United  States;  or  whoever  shall  pass, 
utter,  publish,  or  sell,  or  bring  into  the  United  States  or 
any  place  subject  to  the  jurisdiction  thereof,  from  any  for- 
eign place,  or  have  in  his  possession  any  such  false,  forg- 
et 1,  or  counterfeited  coin,  with  intent  to  defraud  any  per- 
son whomsoever,  shall  be  fined  not  more  than  one  thou- 
sand dollars  and  imprisoned  not  more  than  three  years. 
(R.  S.,  s.  5458.) 

Statler   v.    U.    S.,    157    U.    S.,   277;    U. 
S.   v.    Bicksler,    1    Mackey,    341. 

!()•").  Falsifying,  mutilating,  or  lightening  coinage. — 
Whoever,  fraudulently,  by  any  art,  way,  or  means,  shall 
deface,  mutilate,  impair,  diminish,  falsify,  scale,  or  light- 
en, or  cause  or  procure  to  be  fraudulently  defaced,  muti- 
lated,  impaired,  diminished,  falsified,  scaled,  or  lighten- 
ed,  or  willingly  nid  of  assist  in  fraudulently  defacing,  mu- 


Offenses  Against  the  Currency,  Coinage,  Etc.  825 

tilating,  impairing,  diminishing,  falsifying,  scaling,  or 
lightening,  the  gold  or  silver  coins  which  have  been,  or 
which  may  hereafter  be,  coined  at  the  mints  of  the  United 
States,  or  any  foreign  gold  or  silver  coins  which  are  by 
law  made  current  or  are  in  actual  use  or  circulation 
as  money  within  the  United  States  or  in  any  place  sub- 
ject to  the  jurisdiction  thereof;  or  whoever  shall  pass,  ut- 
ter, publish,  or  sell  or  attempt  to  pass,  utter,  publish, 
or  sell  or  bring  into  the  United  States  or  any  place 
subject  to  the  jurisdiction  thereof,  from  any  foreign 
place,  knowing  the  same  to  be  defaced,  mutilated,  im- 
paired, diminished,  falsified,  scaled,  or  lightened,  with  in- 
tent to  defraud  any  person  whomsoever,  or  shall  have 
in  his  possession  any  such  defaced,  mutilated,  impaired, 
diminished,  falsified,  scaled,  or  lightened  coin,  know- 
ing the  same  to  be  defaced,  mutilated,  impaired,  di- 
minished, falsified,  scaled,  or  lightened,  with  intent  to 
defraud  any  person  whomsoever,  shall  be  fined  not  more 
than  two  thousand  dollars  and  imprisoned  not  more 
than  five  years.  (R.  S.,  s.  5459.  3  Mar.,  1897,  29  Stat.  L., 
625,  c.  377;  2  Supp.,  579.) 

U.    S.    v.    Lissner,    12    Fed.    Rep.,    840. 

§  166.  Debasement  of  coinage  by  officers  of  the  mint. 
— If  any  of  the  gold  or  silver  coins  struck  or  coined  at 
any  of  the  mints  of  the  United  States  shall  be  debased,  or 
made  worse  as  to  the  proportion  of  fine  gold  or  fine  silver 
therein  contained,  or  shall  be  of  less  weight  or  value  than 
the  same  ought  to  be,  pursuant  to  law,  or  if  any  of  the 
scales  or  weights  used  at  any  of  the  mints  or  assay  offices 
of  the  United  States  shall  be  defaced,  altered,  increased, 
or  diminished  through  the  fault  or  connivance  of  any  offi- 
cer or  person  employed  at  the  said  mints'  or  assay  offices, 
with  a  fraudulent  intent;  or  if  any  such  officer  or  person 
shall  embezzle  any  of  the  metals  at  any  time  committed  to 
his  charge  for  the  purpose  of  being  coined,  or  any  of  the 
coins  struck  or  coined  at  the  said  mints,  or  any  medals, 
coins,  or  other  moneys  of  said  mints  or  assay  offices  at  any 
time  committed  to  his  charge,  or  of  which  he  may  have 
assumed  the  charge,  every  such  officer  or  person  who  com- 
mits any  of  the  said  offenses  shall  be  fined  not  more  than 
ten  thousand  dollars  and  imprisoned  not  more  than  ten 
years.     (R.  S.,  s.  5460.) 


826  Federal  Criminal  Law  Procedure. 

§  167.  Making  or  uttering  coins  in  resemblance  of 
money. — Whoever,  except  as  authorized  by  law,  shall 
make  or  cause  to  be  made,  or  shall  utter  or  pass,  or  at- 
tempt to  utter  or  pass,  any  coins  of  gold  or  silver  or  other 
metal,  or  alloys  of  metals,  intended  for  the  use  and  pur- 
pose of  current  money,  whether  in  the  resemblance  of  coins 
of  the  United  States  or  of  foreign  countries,  or  of  original 
design,  shall  be  fined  not  more  than  three  thousand  dol- 
lars, or  imprisoned  not  more  than  five  years,  or  both.  (R. 
S.,  s.  5461.) 

Ex     parte     Holcomb     2     Dill.,     392,     12         S.    v.    Bogart,    9    Ben.,   314,   24   Fed.    Cas., 
Fed.     Cas..     328;     U.     S.    v.     Bejandio,     I         1185. 
Woods,    294,     24     Fed.     Cas.,     1076;     U. 

§  168.    Making  or  issuing  devices  of  minor  coins. — 

Whoever,  not  lawfully  authorized,  shall  make,  issue,  or 
pass,  or  cause  to  be  made,  issued  or  passed,  any  coin,  card, 
token,  or  device  in  metal,  or  its  compounds,  which  may  be 
intended  to  be  used  as  money  for  any  one-cent,  two-cent, 
three-cent,  or  five-cent  piece,  now  or  hereafter  authorized 
by  law,  or  for  coins  of  equal  value,  shall  be  fined  not  more 
than  one  thousand  dollars  and  imprisoned  not  more  than 
five  years.    (R.  S.,  s.  5462.) 

U.    S.    v.    Roussopulous,    95    Fed.    Rep., 
977. 

§  169.    Counterfeiting,  etc.,  dies  for  coins  of  United 

States. — Whoever,  without  lawful  authority,  shall  make, 
or  cause  or  procure  to  be  made,  or  shall  willingly  aid  or 
assist  in  making,  any  die,  hub,  or  mould,  or  any  part  there- 
of, either  of  steel  or  plaster,  or  any  other  substance  what- 
soever, in  the  likeness  or  similitude,  as  to  the  design  or 
the  inscription  thereon,  of  any  die,  hub,  or  mold  desig- 
nated for  the  coining  or  making  of  any  of  the  genuine 
gold,  silver,  nickle,  bronze,  copper,  or  other  coins  of  the 
United  States,  that  have  been  or  hereafter  may  be  coined 
at  the  mints  of  the  United  States;  or  whoever,  without 
lawful  authority,  shall  have  in  his  possession  any  such  die, 
lnil),  or  mold,  or  any  part  thereof,  or  shall  permit  the  same 
to  be  used  for  or  in  aid  of  the  counterfeiting  of  any  of 
the  coins  of  the  United  States  hereinbefore  mentioned, 
shall  be  fined  not  more  than  five  thousand  dollars  and 
imprisoned  not  more  than  ten  years.  (10  Feb.,  1891,  26 
Stat.  L.,  742,  c.  127,  s.  1;  1  Supp.,  889.) 

U.    S.    v.    Roussopulous,    95    Fed.    Rep., 
977. 


Offenses  Against  the  Currency,  Coinage,  Etc.  827 

§  170.  Counterfeiting,  etc.,  dies  for  foreign  coins. — 
Whoever,  within  the  United  States  or  any  place  subject  to 
the  jurisdiction  thereof,  without  'lawful  authority,  shall 
make,  or  cause  or  procure  to  be  made,  or  shall  willingly 
aid  or  assist  in  making,  any  die,  hub,  or  mold,  or  any  part 
thereof,  either  of  steel  or  plaster,  or  of  any  other  sub- 
stance whatsoever,  in  the  likeness  or  similitude,  as  to  the 
design  or  the  inscription  thereon,  of  any  die,  hub,  or  mold 
designated  for  the  coining  of  the  genuine  coin  of  any  for- 
eign government;  or  whoever,  without  lawful  authority, 
shall  have  in  his  possession  any  such  die,  hub,  or  mold,  or 
any  part  thereof,  or  shall  conceal,  or  knowingly  suffer  the 
same  to  be  used  for  the  counterfeiting  of  any  foreign  coin, 
shall  be  fined  not  more  than  two  thousand  dollars,  or  im- 
prisoned not  more  than  five  years,  or  both.  (10  Feb.,  1891, 
26  Stat.  L.,  742,  c.  127,  s.  2;  1  Supp.,  890.) 

§  171.  Making,  importing,  or  having  in  possession 
tokens,  prints,  etc.,  similar  to  United  States  or  foreign 
coins. — Whoever,  within  the  United  States  or  any  place 
subject  to  the  jurisdiction  thereof,  shall  make,  or  cause  or 
procure  to  be  made,  or  shall  bring  therein,  from  any  for- 
eign country,  or  shall  have  in  possession  with  intent  to 
sell,  give  away,  or  in  any  other  manner,  use  the  same,  any 
business  or  professional  card,  notice,  placard,  token,  de- 
vice, print,  or  impression,  or  any  other  thing  whatsoever, 
in  the  likeness  or  similitude  as  to  desi  gn,  color,  or  the  in- 
scription thereon,  of  any  of  the  coins  of  the  United  States 
or  of  any  foreign  country  that  have  been  or  hereafter  may 
be  used  as  money,  either  under  the  authority  of  the  Unit- 
ed States  or  under  the  authority  of  any  foreign  govern- 
ment, shall  be  fined  not  more  than  one  hundred  dollars. 
But  nothing  in  this  section  shall  be  construed  to  forbid  or 
prevent  the  printing  and  publishing  of  illustrations  of 
coins  and  medals,  or  the  making  of  the  necessary  plates 
for  the  same,  to  be  used  in  illustrating  numismatic  and 
historical  books  and  journals  and  the  circulars  of  legiti- 
mate publishers  and  dealers  in  the  same.  (10  Feb.,  1891 
26  Stat.  L.,  742,  c.  127,  s.  3;  1  Supp.,  890,  3  Mar.,  1903,  32 
Stat.  L.,  1223,  c.  1015. 

Kaye  v.   U.   S.,    177   Fed.   Rep.,   147. 


828  Federal  Criminal  Law  Procedure. 

§  172.  Counterfeit  obligations,  securities,  coins,  or  ma- 
terial for  counterfeiting,  to  be  forfeited. — All  counterfeits 
of  any  obligation  or  other  security  of  the  United  States  or 
of  any  foreign  government,  or  counterfeits  of  any  of  the 
coins  of  the  United  States  or  of  any  foreign  government, 
and  all  material  or  apparatus  fitted  or  intended  to  be  used, 
or  that  shall  have  been  used,  in  the  making  of  any  of  such 
counterfeit  obligation  or  other  security  or  coins  hereinbe- 
fore mentioned,  that  shall  be  found  in  the  possession  of 
any  person  without  authority  from  the  Secretary  of  the 
Treasury  or  other  proper  officer  to  have  the  same,  shall  be 
taken  possession  of  by  any  authorized  agent  of  the  Treas- 
ury Department  and  forfeited  to  the  United  States,  and 
disposed  of  in  any  manner  the  Secretary  of  the  Treasury 
may-  direct.  Whoever  having  the  custody  or  control  of 
any  such  counterfeits,  material,  or  apparatus  shall  fail  or 
refuse  to  surrender  possession  thereof  upon  request  by 
any  such  authorized  agent  of  the  Treasury  Department, 
shall  be  fined  not  more  than  one  hundred  dollars,  or  im- 
prisoned not  more  than  one  year,  or  both.  (10  Feb.,  1891, 
26  Stat.  L.,  742,  c.  127,  s.  4;  1  Supp.,  890.) 

§  173.  Issue  of  search  warrants  in  certain  cases  for 
suspected  counterfeit  obligations,  securities,  or  coin,  or 
material  for  counterfeiting,  forfeiture. — The  several  judg- 
es of  courts  established  under  the  laws  of  the  United 
States  and  United  States  commissionrs  may  upon  proper 
<>ath  or  affirmation,  within  their  respective  jurisdictions, 
issue  a  search  warrant  authorizing  any  marshal  of  the 
United  States,  or  any  other  person  specifically  mentioned 
in  such  warrant,  to  enter  any  house,  store,  building,  boat, 
or  other  place  named  in  such  warrant,  in  which  there  shall 
appear  probable  cause  for  believeing  that  the  manufac- 
ture of  counterfeit  money,  or  the  concealment  of  coun- 
terfeit money,  or  the  manufacture  or  concealment  of 
counterfeit  obligations  or  coins  of  the  United  States  or 
of  any  foreign  government,  or  the  manufacture  or  con- 
cealmenl  of  dies,  hubs,  molds,  plates,  or  other  things 
fitted  or  intended  to  be  used  for  the  manufacture  of 
counterfeit  money,  coins,  or  obligations  of  the  United 
States  or  of  any  foreign  government,  or  of  any  bank 
doing  business  under  the  authority  of  the  United  States 


Offenses  Against  the  Currency,  Coinage,  Etc.  829 

or  of  any  State  or  Territory  thereof,  or  of  any  bank 
doing  business  under  the  authority  of  any  foreign  gov- 
ernment, or  of  any  political  division  of  any  foreign 
government,  is  being  carried  on  or  practiced,  and  there 
search  for  any  such  counterfeit  money,  coins,  dies, 
hubs,  molds,  plates,  and  other  things,  and  for  any  such  ob- 
ligations, and  if  any  such  be  found,  to  seize  and  secure  the 
same  and  to  make  return  thereof  to  the  proper  authority; 
and  all  such  counterfeit  money,  coins,  dies,  hubs,  molds, 
plates,  and  other  things,  and  all  such  counterfeit  obliga- 
tions so  seized  shall  be  forfeited  to  the  United  States.  (10 
Feb.,  1891,  26  Stat.  L.,  743,  c.  127,  s.  5;  1  Supp.,  890.) 

§  174.  Circulating  bills  of  expired  corporations. — In 
all  cases  where  the  charter  of  any  corporation  which  has 
been  or  may  be  created  by  act  of  Congress  has  expired  or 
may  hereafter  expire,  if  any  director,  officer,  or  agent  of 
the  corporation,  or  any  trustee  thereof,  or  any  agent  of 
such  trustee,  or  any  person  having  in  his  possession  or 
under  his  control  the  property  of  the  corporation  for  the 
purpose  of  paying  or  redeeming  its  notes  and  obligations, 
shall  knowingly  issue,  reissue,  or  utter  as  money,  or  in  any 
other  way  knowingly  put  in  circulation  any  bill,  note, 
check,  draft,  or  other  security  purporting  to  have  been 
made  by  any  such  corporation  whose  charter  has  expired, 
or  by  any  officer  thereof,  or  purporting  to  have  been  made 
under  authority  derived  therefrom,  or  if  any  person  shall 
knowingly  aid  in  any  such  act,  he  shall  be  fined  not  more 
than  ten  thousand  dollars, or  imprisoned  not  more  than  five 
years,  or  both.  But  nothing  herein  shall  be  construed  to 
make  it  unlawful  for  any  person,  not  being  such  director, 
officer,  or  agent  of  the  corporation,  or  any  trustee  thereof, 
or  any  agent  of  such  trustee,  or  any  person  having  in  his 
possession  or  under  his  control  the  property  of  the  cor- 
poration for  the  purpose  hereinbefore  set  forth,  who  has 
received  or  may  hereafter  receive  such  bill,  note,  check, 
draft,  or  other  security,  bona  fide  and  in  the  ordinarv 
transactions  of  business,  to  utter  as  money  or  otherwise 
circulate  the  same.    (R.  S.,  s.  5437.) 

§  175.  Imitating  national  banking  notes  with  printed 
advertisements,  thereon. — It  shall  not  be  lawful  to  design, 
engrave,  print,  or  in  any  manner  make  or  execute,  or  to 


830  Federal  Criminal  Law  Procedure. 

utter,  issue,  distribute,  circulate,  or  use  any  business  or 
professional  card,  notice,  placard,  circular,  handbill,  or 
advertisement  in  the  likeness  or  similitude  of  any  circu- 
lating note  or  other  obligation  or  security  of  any  banking 
association  organized  or  acting  under  the  laws  of  the  Unit- 
ed States  which  has  been  or  may  be  issued  under  any  act 
of  Congress,  or  to  write,  print,  or  otherwise  impress  upon 
any  such  note,  obligation,  or  security,  any  business  or  pro- 
fessional card,  notice  or  advertisement,  or  any  notice  or 
advertisement  of  any  matter  or  thing  whatever.  Whoever 
shall  violate  any  provision  of  this  section  shall  be  fined  not 
more  than  one  hundred  dollars  or  imprisoned  not  more 
than  six  months,  or  both.     (R.  S.,  s.  5188.) 

U.    S.   v.    Laescki,    29    Fed.    Rep.,    699. 

a 

§  176.  Mutilating  or  defacing  national-bank  note.— 
"Whoever  shall  mutilate,  cut,  deface,  disfigure,  or  perfo- 
rate with  holes,  or  unite  or  cement  together,  or  do  any 
other  thing  to  any  bank  bill,  draft,  note,  or  other  evidence 
of  debt,  issued  by  any  national  banking  association,  or 
shall  cause  or  procure  the  same  to  be  done,  with  intent  to 
render  such  bank  bill,  draft,  note,  or  other  evidence  of 
debt  unfit  to  be  reissued  by  said  association,  shall  be  fined 
not  more  than  one  hundred  dollars,  or  imprisoned  not 
more  than  six  months,  or  both.    (R.  S.,  s.  5189.) 

§  177.  Imitating  United  States  securities  or  print- 
ing business,  cards  on  them. — It  shall  not  be  lawful  to  de- 
sign, engrave,  print,  or  in  any  manner  make  or  execute  or 
to  utter,  issue,  distribute,  circulate,  or  use,  any  business 
or  professional  card,  notice,  placard,  circular,  handbill,  or 
advertisement,  in  the  likeness  or  similitude  of  any  bond, 
certificate  of  indebtedness,  certificate  of  deposit,  coupon, 
United  States  note,  Treasury  note  gold  certificate,  silver 
certificate,  fractional  note,  or  other  obligation  or  security 
of  the  United  Slates  which  has  been  or  may  be  issued  un- 
der or  authorized  by  any  act  of  Congress  heretofore  passed 
or  which  may  hereafter  be  passed;  or  to  write,  print,  or 
otherwise  impress  upon  any  such  instrument,  obligation, 
or  security,  any  business  or  professional  card,  notice,  or 
advertisement,  or  any  notice  or  advertisement,  or  any 
matter  or  thing  whatever     Whoever  shall  violate  any 


Offenses  Against  the  Currency,  Coinage,  Etc.  831 

provision  of  this  section  shall  be  fined  not  more  than  five 
hundred  dollars.     (R.  S.,  s.  3708.) 

U.   S.  v.  Laescki,  29  Fed.  Rep.,  699. 

§  178.  Notes  of  less  than  one  dollar  not  to  be  issued. — 
No  person  shall  make,  issue,  circulate,  or  pay  out  any 
note,  check,  memorandum,  token,  or  other  obligation  for 
a  less  sum  than  one  dollar,  intended  to  circulate  as 
money  or  to  be  received  or  used  in  lieu  of" lawful  money 
of  the  United  States;  and  every  person  so  offending  shall 
be  fined  not  more  than  five  hundred  dollars,  or  impris- 
oned not  more  than  six  months,  or  both.    (R.  S.,  s.  3583.) 


CHAPTER       EIGHT. 

OFFENSES  AGAINST  THE  POSTAL  SERVICE. 

§  179.  Conducting  post-office  without  authority. 

180.  Illegal  carrying  of  mail  by  carriers  and  others. 

181.  Conveyance  of  mail  by  private  express  forbidden. 

182.  Transporting  persons   unlawfully   conveying   mail. 

183.  Sending  letters  by  private  express. 

184.  Conveying  of  letters  over  post  routes. 

185.  Carrying  letters  out  of  the  mail  on  board  of  vessel. 

186.  When  conveying  letters  by  private  persons  is  lawful. 

187.  Wearing  uniform  of  carrier  without  authority. 

188.  Vehicles,  etc.,   claiming  to  be  mail  carriers. 

189.  Injuring  mail  bags,  etc. 

190.  Stealing  post-office  property. 

191.  Stealing  or  forging  mail  locks  or  keys. 

192.  Breaking  into  and  entering  post-office. 

193.  Unlawfully  entering  postal  car,  etc. 

194.  Stealing,    secreting,    embezzlement,    etc.,    mail    matter    or    con. 

tents. 

195.  Postmaster  or  employee  of  postal  service  detaining,  destroying, 

or  embezzling  letters,  etc. 

196.  Postmaster,  etc.,  detaining  or  destroying  newspapers. 

197.  Assaulting  mail  carrier  with  intent  to  rob,  and  robbing  mail. 

198.  Injuring  letter  boxes   or  mail   matter,  assaulting  carrier,   etc. 

199.  Deserting   the    mail. 

200.  Delivery  of  letters   by  master   of  vessel. 

201.  Obstructing  the   mail. 

202.  Ferryman  delaying  the  mail. 

203.  Letters  carried  in  a  foreign  vessel  to  be  deposited  in  a  post- 

office. 

204.  Vessels  to  deliver  letters  at  post-office;     oath. 

205.  Using,   selling,   etc.,   cancelled   stamps;     removing  cancellation 

marks   from  stamps,   etc. 

206.  False  returns  to  increase  compensation. 

207.  Collection    of    unlawful    postage    forbidden. 

208.  Unlawful  pledging  or  sale  of  stamps. 

209.  Failure  to  account  for  postage  and  to  cancel  stamps,  etc.,  by 

officials. 

210.  Issuing   money   order    without    payment. 

211.  Obscene,  etc.,  matter  non-mailable. 

212.  Libelous   and    indecent  wrappers  and   envelopes. 

213.  Lottery,  gift  enterprise,  etc.,  circulars,  etc.,  not  mailable. 

214.  Postmasters  not  to  be  lottery  agents. 
21".  Use  of  mails  to  promote  frauds. 

(832) 


Offenses  Against  the  Postal  Service.  833 

216.  Fraudulently    assuming    fictitious    address. 

217.  Poisons  and  explosives  non-mailable. 

218.  Counterfeiting  money  orders. 

219.  Counterfeiting  postage  stamps. 

220.  Counterfeiting,  etc.,  foreign  stamps. 

221.  Inclosing  higher  class  in  lower  class  matter. 

222.  Postmaster    illegally   approving  bond,  etc. 

223.  False   evidence   as   to   second-class    matter. 

224.  Inducing  or  prosecuting  false  claims. 

225.  Misappropriation  of  postal  funds  or  property. 

226.  Employees  not  to  become  interested  in  contracts. 

227.  Fraudulent  use  of  official  envelopes. 

228.  Fraudulent  increase  of  weight  of  mail. 

229.  Offenses  against  foreign  mail  in  transit. 

230.  Omission  to  take  oath. 

231.  Definitions. 

§  179.  Conducting  post-office  without  authority. — 
Whoever,  without  authority  from  the  Postmaster-General 
shall  set  up  or  profess  to  keep  any  office  or  place  of  busi- 
ness bearing  the  sign,  name,  or  title  of  post-office,  shall 
be  fined  not  more  than  five  hundred  dollars.  (R.  S.,  s. 
3829.) 

§  180.  Illegal  carrying  by  carriers  and  others. — Who- 
ever, being  concerned  in  carrying  the  mail,  shall  collect, 
receive,  or  carry  any  letter  or  packet,  or  cause  or  pro- 
cure the  same  to  be  done,  contrary  to  law,  shall  be  fined 
not  more  than  fifty  dollars,  or  imprisoned  not  more  than 
thirty  days,  or  both.    (R.  S.,  s.  3981.) 

4    A.    G.,    276;    Op.    A.    G.    McVeagh, 
June    29,    1881. 

§  181.  Conveyance  of  mail  by  private  express  forbid- 
den.— Whoever  shall  establish  any  private  express  for 
the  conveyance  of  letters  or  packets,  or  in  any  manner 
cause  or  provide  for  the  conveyance  of  the  same  by  regu- 
lar trips  or  at  stated  periods  over  any  post  route  which 
is  or  may  be  established  by  law,  or  from  any  city,  town, 
or  place,  to  any  other  city,  town,  or  place,  between  which 
the  mail  is  regularly  carried,  or  whoever  shall  aid  or  as- 
sist therein  shall  be  fined  not  more  than  five  hundred 
dollars,  or  imprisoned  not  more  than  six  months,  or  both : 
Provided,  That  nothing  contained  in  this  section  shall  be 
construed  as  prohibiting  any  person  from  receiving  and 

53 


834  Federal  Criminal  Law  Procedure. 

delivering  to  the  nearest  post-office,  postal  car,  or  other 
authorized  depository  for  mail  matter,  any  mail  matter 
properly  stamped. 

R.    S.,    s.    3982.  782;     U.     S.     v.     Kochersparger,     9     Am. 

3  Mar.,   1879,  20   Stat.  L.,   356,  c.   180,        L.     Reg.,     145,    26     Fed.     Cas.,    803;     U. 
1;    1    Supp.,    245.  S.   v.   Pomeroy,    3   N.   Y.   Leg.   Obs.,    143, 


1     Mar.,    1884,    23    Stat.    L.,    3,    c,    9 


27    Fed.    Cas.,    588;    U.    S.    v.    Thompson, 


1     Supp.,     423     U.     S.    v.     Bromley,     12        9    Law    Rep.,     451,     28     Fed.     Cas.,     97; 

U.  S.  v.  Express  Co.,  5  Biss.,  91,  28 
Fed.  Cas.,  352;  Blackham  v.  Gresham. 
16  Fed.  Rep.,  609;  U.  S.  v.  Easson. 
18  Fed.  Rep.,  609;  4  A.  G.  Op.,  349: 
14   A.    G.    Oo.,    152;    19   A.    G.    Op.,   670. 


How..  88;  U.  S.  v.  Adams.  1  West,  L 
J.,  315,  24  Fed.  Cas.,  761;  U.  S.  v 
Gray,  3  Hag,  Reg.  U.  S.,  227,  26  Fed 
Cas.,  18;  U.  S.  v.  Hal,  9  Am.  L.  Reg. 
232,  26  Fled.  Cas.,  75;  U.  S.  v.  Kim 
ball,     7     Law    Rep.,     32.     26    Fed.     Cas. 

§  182.  Transporting  persons  unlawfully  conveying 
mail. — Whoever,  being  the  owner,  driver,  conductor, 
master,  or  other  person  having  charge  of  any  stagecoach, 
railway  car,  steamboat,  or  other  vehicle  or  vessel,  shall 
knowingly  convey  or  knowingly  permit  the  conveyance 
of  any  person  acting  or  employed  as  a  private  express  for 
the  conveyance  of  letters  or  packets,  and  actually  in  pos- 
session of  the  same  for  the  purpose  of  conveying  them, 
contrarv  to  law,  shall  be  fined  not  more  than  one  hundred 
and  fifty  dollars.    (R.  S.,  s.  3983.) 

§  183.  Sending  letters  by  private  express. — Whoever 
shall  transmit  by  private  express  or  other  unlawful 
means,  or  deliver  to  any  agent  thereof,  or  deposit  or  cause 
to  be  deposited  at  any  appointed  place,  for  the  purpose 
of  being  so  transmitted,  any  letter  or  packet,  shall  be 
fined  not  more  than  fifty  dollars.    (R.  S.,  s.  3984.) 

§  184.  Conveying  letters  over  post  routes. — Whoever, 
being  the  owner,  driver,  conductor,  master,  or  other  per- 
son having  charge  of  any  stagecoach,  railway  car,  steam- 
boat, or  conveyance  of  any  kind  which  regularly  performs 
trips  at  stated  periods  on  any  post  route,  or  from  any 
city,  town,  or  place  to  any  other  city,  town,  or  place  be- 
tween which  the  mail  is  regularly  carried,  and  which 
shall  carry,  otherwise  than  in  the  mail,  any  letters  or 
packets,  except  such  as  relate  to  some  part  of  the  cargo 
of  such  steamboat  or  other  vessel,  to  the  current  business 
of  the  carrier,  or  to  some  article  carried  at  the  same  time 
by  the  same  stage  coach,  railway  car,  or  other  vehicle, 
except  as  otherwise  provided  by  law,  shall  be  fined  not 
more  than  fifty  dollars.     (R.  S.,  s.  3985.) 

I  A.  C,.  Op.,  159;  ibid.,  276;  21  A. 
<■.  Op.,  94;  U.  S.  v.  U.  S.  Exp.  Co.. 
5     Hiss.,    91;     28    Fed.    Cas.,    352. 


Offenses  Against  the  Postal  Service.  835 

§  185.  Carrying  letters  out  of  the  mail  on  board  ves- 
sel.— Whoever  shall  carry  any  letter  or  packet  on  board 
any  vessel  which  carries  the  mail,  otherwise  than  in  such 
mail,  except  as  otherwise  provided  by  law,  shall  be  fined 
not  more  than  fifty  dollars,  or  imprisoned  not  more  than 
one  month,  or  both.     (R.  S.,  s.  3986.) 

§  186.  When  conveying  of  letters  by  private  persons 
is  lawful. — Nothing  in  this  chapter  shall  be  construed  to 
prohibit  the  conveyance  or  transmission  of  letters  or 
packets  by  private  hands  without  compensation,  or  by 
special  messenger  emploved  for  the  particular  occasion 
only.    (E.  S.,  s.  3992.) 

4    A.    G.    Op.,    159. 

§  187.  Wearing  uniform  of  carrier  without  authority. 
— Whoever,  not  being  connected  with  the  letter-carrier 
branch  of  the  postal  service,  shall  wear  the  uniform  or 
badge  which  may  be  prescribed  by  the  Postmaster-Gen- 
eral, to  be  worn  by  letter  carriers,  shall  be  fined  not  more 
than  one  hundred  dollars,  or  imprisoned  not  more  than 
six  month,  or  both.     (R.  £}.,  s.  3867.) 

§  188.  Vehicles,  etc.,  claiming  to  be  mail  carriers. — 
It  shall  be  unlawful  to  paint,  print,  or  in  any  manner  to 
place  upon  or  attach  to  any  steamboat  or  other  vessel, 
or  any  car,  stagecoach,  vehicle,  or  other  conveyance,  not 
actually  used  in  carrying  the  mail,  the  words  "United 
States  Mail,"  or  any  words,  letters,  or  characters  of  like 
import;  or  to  give  notice,  by  publishing  in  any  newspaper 
or  otherwise,  that  any  steamboat  or  other  vessel,  or  any 
car,  stage-coach,  vehicle,  or  other  conveyance,  is  used  in 
carrying  the  mail,  when  the  same  is  not  actually  so  used; 
and  every  person  who  shall  violate,  and  every  owner,  re- 
ceiver, lessee,  or  managing  operator  thereof,  who  shall 
cause,  suffer,  or  permit  the  violation  of  any  provision  of 
this  section,  shall  be  liable,  and  shall  be  fined  not  more 
than  one  thousand  dollars,  or  imprisoned  not  more  than 
two  years,  or  both.     (R.  S.,  s.  3979.) 

§  189.  Injuring  mail  bags,  etc. — Whoever  shall  tear, 
cut,  or  otherwise  injure  any  mail  bag,  pouch,  or  other 
thing  used  or  designed  for  use  in  the  conveyance  of  the 
mail,  or  shall  draw  or  break  any  staple  or  loosen  any  part 
of  any  lock,  chain,  or  strap  attached  thereto,  with  intent 


836  Federal  Criminal  Law  Procedure. 

to  rob  or  steal  any  such  mail,  or  to  render  the  same  inse- 
cure, shall  be  fined  not  more  than  five  hundred  dollars, 
or  imprisoned  not  more  than  three  years,  or  both.  (R. 
S.,  s.  5476.) 

§  190.  Stealing  post-office  property. — Whoever  shall 
steal,  purloin,  or  embezzle  any  mail  bag  or  other  proper- 
ty in  use  by  or  belonging  to  the  Post-Office  Department, 
or  shall  appropriate  any  such  property  to  his  own  or  any 
other  than  its  proper  use,  or  shall  convey  away  any  such 
property  to  the  hindrance  or  detriment  of  the  public  serv- 
ice, shall  be  fined  not  more  than  two  hundred  dollars,  or 
imprisoned  not  more  than  three  years,  or  both.  (R.  S., 
s.  5475.) 

U.   S.  v.  Williams,   57   Fed.   Rep.,   201; 
U.    S.   v.    Yennie,   74   Fed.   Rep.,   211. 

§  191.  Stealing  or  forging  mail  locks  or  keys. — Who- 
ever shall,  steal,  purloin,  embezzle,  or  obtain  by  any  false 
pretense,  or  shall  aid  or  assist  in  stealing,  purloining,  em- 
bezzling, or  obtaining  by  any  false  pretense,  any  key  suit- 
ed to  any  lock  adopted  by  the  Post-Office  Department  and 
in  use  on  any  of  the  mails  or  bags  thereof,  or  any  key 
to  any  lock  box,  lock  drawer,  or  other  authorized  recep- 
tacle for  the  deposit  or  delivery  of  mail  matter;  or  who- 
ever shall  knowingly  and  unlawfully  make,  forge,  or  coun- 
terfeit, or  cause  to  be  unlawfully  made,  forged,  or  coun- 
terfeited, any  such  key,  or  shall  have  in  his  possession  any 
such  mail  lock  or  key  with  the  intent  unlawfully  or  im- 
properly to  use,  sell,  or  otherwise  dispose  of  the  same,  or 
to  cause  the  same  to  be  unlawfully  or  improperly  used, 
sold,  or  otherwise  disposed  of;  or  whoever,  being  engaged 
as  a  contractor  or  otherwise  in  the  manufacture  of  any 
such  mail  lock  or  key,  shall  deliver  or  cause  to  be  de- 
livered, any  finished  or  unfinished  lock  or  key  used  or 
designed  for  use  by  the  Department,  or  the  interior  part 
of  any  such  lock,  to  any  person  not  duly  authorized  under 
the  hand  of  the  Postmaster-General  and  the  seal  of  the 
Post-Office  Department,  to  receive  the  same,  unless  the 
person  receiving  it  is  the  contractor  for  furnishing  the 
same  or  engaged  in  the  manufacture  thereof  in  the  man- 
ner  authorized  by  the  contract,  or  the  agent  of  such  man- 
ufacturer, shall  be  fined  not  more  than  five  hundred  dol- 


Offenses  Against  the  Postal  Service.  837 

lars  and  imprisoned  not  more  than  ten  years.     (R.  S.,  s. 
5477.) 

§  192.  Breaking  into  and  entering  post-office. — Who- 
ever shall  forcibly  break  into  or  attempt  to  break  into 
any  post-office,  or  any  building  used  in  whole  or  in  part 
as  a  post-office,  with  intent  to  commit  in  such  post-office, 
or  building,  or  part  thereof,  so  used,  any  larceny  or  other 
depredation,  shall  be  fined  not  more  than  one  thousand 
dollars  and  imprisoned  not  more  than  five  years.  (R.  S. 
s.  5478.) 

U.     S.     v.     Campbell,     16     Fed.     Rep.,  v.     Shelton,     100     Fed.    Rep.,     381;     Con- 

233;    Re    Byron,    18    Fed.    Rep.,    722;    U.  sidine   v.    U.    S.,    112    Fed.    Rep.,    342;    U. 

S.    v.    Lantry,    30    Fed.    Rep.,    232;    U.    S.  S.    v.    Martin,     140    Fed.    Rep.,    256;    So- 

v.    Williams,    57    Fed.    Rep.,    210;    U.    S.  renson    v.    U.    S.,    143    Fed.    Rep.,    820; 

v.    Yennie,    74    Fed.    Rep.,    221;    U.    S.  168     Fed.     Rep.,     785. 
v.    Saunders,    77    Fed.    Rep.,    170;    U.    S. 

§  193.  Unlawfully  entering  postal  car,  etc. — Who- 
ever, by  violence,  shall  enter  a  post-office  car,  or  any 
apartment  in  any  car,  steamboat,  or  vessel,  assigned  to 
the  use  of  the  Mail  Service,  or  shall  wilfully  or  malicious- 
ly assault  or  interfere  with  any  postal  clerk  in  the  dis- 
charge of  his  duties  in  connection  with  such  car,  steam- 
boat, vessel,  or  apartment  thereof,  or  shall  wilfully  aid 
or  assist  therein,  shall  be  fined  not  more  than  one  thou- 
sand dollars,  or  imprisoned  not  more  than  three  years,  or 
both.    (3  Mar.,  1903,  32  Stat.  L.,  1176,  c.  1009,  s.  5.) 

U.    S.    v.    Yennie,    74    Fed.    Rep.,    221; 
U.   S.  v.   Shelton,   100  Fed.  Rep.,  831. 

§  194.  Stealing,  secreting,  embezzling,  etc.,  mail  mat- 
ter or  contents. — Whoever  shall  steal,  take,  or  abstract, 
or  by  fraud  or  deception  obtain,  from  or  out  of  any  mail, 
post-office,  or  station  thereof,  or  other  authorized  deposi- 
tory for  mail  matter,  or  from  a  letter  or  mail  carrier,  any 
letter,  postal  card,  package,  bag,  or  mail,  or  shall  ab- 
stract or  remove  from  any  such  letter,  package,  bag,  or 
mail,  any  article  or  thing  contained  therein,  or  shall  se- 
crete, embezzle,  or  destroy  any  such  letter,  postal  card, 
package,  bag,  or  mail,  or  any  article  or  thing  contained 
therein;  or  whoever  shall  buy,  receive,  or  conceal,  or  aid 
in  buying,  receiving,  or  concealing,  or  shall  unlawfully 
have  in  his  possession,  any  letter,  postal  card,  package, 
bag,  or  mail,  or  any  article  or  thing  contained  therein, 
which  has  been  so  stolen,  taken,  embezzled,  or  abstract- 
ed, as  herein  described,  knowing  the  same  to  have  been 


838 


Federal  Criminal  Law  Procedure. 


so  stolen,  taken,  embezzled,  or  abstracted;  or  whoevei 
shall  take  any  letter,  postal  card,  or  package,  out  of  any 
post-office  or  station  thereof,  or  out  of  any  authorized  de- 
pository for  mail  matter,  or  from  any  letter  or  mail  car- 
rier, or  which  has  been  in  any  post-office  or  station  there- 
of, or  other  authorized  depository  or  in  the  custody  of 
any  Id  lor  or  mail  carrier,  before  it  has  been  delivered  to 
the  person  to  whom  it  was  directed,  with  a  design  to  ob- 
struct the  correspondence,  or  to  pry  into  the  business  or 
secrets  of  another,  or  shall  open,  secrete,  embezzle,  or  de- 
stroy the  same,  shall  be  fined  not  more  than  two  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both. 
(R.  S.,  ss.  3892,  5469,  5470.) 


s. 

s. 
s. 


u. 
s. 
s. 

s. 
s. 


U.  S.  v.  Hardyman,  13  Pet.,  176; 
Grimm  v.  U.  S.,  156  U.  S.,  604;  Goode 
v.  U.  S.,  159  U.  S.,  663;  Montgomery 
v.  U.  S.,  162  U.  S.,  410;  Hall  v.  U. 
S.,  168  U.  S..  632;  Scott  v.  U.  S.,  172 
U.  S.,  343;  U.  S.  v.  Beaty,  Hempst.. 
487,  24  Fed.  Cas.,  1057;  U.  S.  v.  Bel- 
lew.  2  Brock.,  280,  24  Fed.  Cas.,  1079; 
U.  S.  v.  Bramham,  3  Hughes.  557,  24 
Fed.  Cas.,  1220;  U.  S.  v.  Brent,  17 
Int.  Rev.  Rec,  54,  24  Fed.  Cas.,  1225: 
I'.     S.     v.     Cottingham,     2     Blatch.,     470, 

25  Fed.  Cas.,  673;  U.  S.  v.  Driscoll,  1 
Lowell,  303,  25  Fed.  Cas..  914;  U.  S. 
v.  Fisher,  5  McLean,  23,  25  Fed.  Cas., 
1086;  U.  S.  v.  Fove,  1  Curtis,  364,  25 
Fed.  Cas.,  1198;  U.  S.  v.  Golding,  2 
Cranch  C.  C,  212,  25  Fed.  Cas.,  1349; 
U.  S.,  v.  Harmison,  3  Sawy.,  556,  26 
Fed.  Cas.,  156;  U.  S.  v.  Jenther,  13 
Blatch.,  335,  26  Fed.  Cas.,  610;  U. 
S.  v.  Keene,  5  McLean,  509,  26  Fed. 
Cas.,  694;  U.  S.  v.  Lancaster,  2  Mc- 
Lean, 431,  26  Fed.  Cas.,  854;  U.  S. 
v.  Laws,  2  Lowell,  115,  26  Fed.  Cas., 
892:    IT.    S.    v.    Marselis,    2    Blatch..    108, 

26  Fed.  Cas.,  1167;  U.  S.  v.  Martin. 
2  McLean,  256,  26  Fed.  Cas.,  1183; 
U.  S.  v.  Montgomery,  3  Sawv.,  544,  26 
Fed.  Cas.,  1296;  U.  S.  v.  Nott,  1  Mc- 
Lean, 499.  27  Fed.  Cas..  189;  U.  S. 
v.  Okie,  5  Blatch.,  516,  27  Fed.  Cas., 
231:    U.    S.    r.    Oliver,    4    L.    Rep.,    197, 

27  Fed.  Cas.,  232;  U.  S.  v.  Parsons,  2 
Blalch.,  104,  27  Fed.  Cas.,  451;  U.  S. 
v.  Patterson,  6  McLean;  466,  27  Fed. 
Cas..  \66\  U.  S.  v.  Pearce,  2  McLean, 
14,    27    Fed.    Cas.,    480;    U.    S.    v.    Pelle- 

.     14     Blatch.,     126,     27     Fed.     Cas., 

U.     S.     v.     Pond.     2     Curtis,     265, 

27    Fed.    Cas.,    590;     U.     S.    v.     Sander. 

§  195.  Postmaster  or  employee  of  pes'cal  service  de- 
taining, destroying,  or  embezzling  letter,  etc.— Whoever, 
being  ;i  postmaster  or  other  person  employed  in  any  de- 
partmenl  of  the  postal  service,  shall  unlawfully  detain, 
delay,  or  open  any  letter,  postal  card,  package,  bag,'  or 
mail  intrusted  to  him  or  which  shall  come  into  his  pos- 


6  McLean,  598,  27  Fed.  Cas.,  949; 
U.  S.  v.  Tanner,  6  McLean,  128,  28 
Fed.  Cas.,  12;  U.  S.  v.  Taylor,  1  Hughes, 
514,  28  Fed.  Cas.,  19;  U.  S.  v.  Whit- 
tier,  5  Dill.,  35,  28  Fed.  Cas.,  591;  U. 
S.  v.  Baugh,  1  Fed.  Rep.,  784;  U.  S. 
v.  Hamilton,  9  Fed.  Rep.,  422;  U.  S. 
v.  Wynn,  9  Fed.  Rep.,  886;  U.  S. 
v.  McCready,  11  Fed.  Rep.,  225;  U. 
S.  v.  Blackman,  17  Fed.  Rep.,  837;  New 
Orleans  Nat.  Bank  v.  Merchant,  18  Fed. 
Rep.,  847;  U.  S.  v.  Hilbury,  29  Fed. 
Rep.,  705;  U.  S.  v.  Thompson,  29  Fed. 
Rep.,  706;  U.  S.  v.  Rapp,  30  Fed.  Rep., 
818;  Re  Burkhart,  33  Fed.  Rep.,  25: 
U.    S.   v.    Gruver,    35    Fed.    Rep.,    59;    U. 

v.     Denicke,    35     Fed.    Rep.,    407;     U. 

v.    Mathews,    35    Fed.    Rep.,    890; 

v.  Jolly,  37  Fed.  Rep.,  108;  U. 
v.  Taylor,  37  Fed.  Rep.,  200;  U. 
v.  Wight,  38  Fed.  Rep.,  106;  U. 
v.  Clarke,  40  Fed.  Rep.,  325;  U. 
v.  Holmes,  40  Fed.  Rep..  750;  U.  S.  v. 
Dorsey,  40  Fed.  Rep.,  752;  Walster  v. 
U.  S.,  42  Fed.  Rep.,  891;  U.  S.  v. 
Byrne,  44  Fed.  Rep.,  188;  U.  S.  v. 
Wilson,  44  Fed.  Rep.,  593;  U.  S.  v. 
Bithea,  44  Fed.  Rep.,  802;  U.  S.  v. 
Mulhollond,  50  Fed.  Rep.,  413;  U.  S. 
v.  Delany,  55  Fed.  Rep.,  475;  U.  S. 
v.  Safford,  66  Fed.  Rep.,  942;  U.  S.  v. 
Thomas,  69  Fed.  Rep.,  588:  U.  S.  v. 
Hall,  76  Fed.  Rep.,  566;  U.  S.  v.  Tones, 
SO  Fed.  Rep.,  513;  U.  S.  v.  Lee,  90 
Fed.  Rep.,  256;  U.  S.  v.  Huilsman,  94 
Fed.  Rep.,  486;  U.  S.  v.  Trosper,  127 
Fed.  Rep.,  476;  U.  S.  v.  Meyers,  142 
Fed.  Rep.,  907;  Brown  v.  U.  S.,  148 
Fed.  Rep.,  379;  U.  S.  v.  Bullington,  170 
Fed.    Rep.,    121. 


Offenses  Against  the  Postal  Service.  839 

session,  and  which  was  intended  to  be  conveyed  by  mail, 
or  carried  or  delivered  by  any  carrier,  messenger,  agent, 
or  other  person  employed  in  any  department  of  the  pos- 
tal service,  or  forwarded  through  or  delivered  from  any 
post-office  or  station  thereof  established  by  authority  of 
the  Postmaster-General;  or  shall  secrete,  embezzle,  or  de- 
stroy any  such  letter,  postal  card,  package,  bag,  or  mail; 
or  shall  steal,  abstract,  or  remove  from  any  such  letter, 
package,  bag,  or  mail,  any  article  or  thing  contained 
therein,  shall  be  fined  not  more  than  five  hundred  dol- 
lars, or  imprisoned  not  more  than  five  years,  or  both. 
(R.  S.,  ss.  3890,  2891,  5467.) 

Bramberger  v.  U.  S.,  128  Fed.  Rep.,  551;  Ennis  v.  U.  S.,  154  Fed.  Rep., 
346;  Alexis  v.  U.  S.,  129  Fed.  Rep.,  842;  U.  S.  v.  Kerr,  159  Fed.  Rep.,  185; 
60;    Chitwood   v.    U.    S.,    153    Fed.    Rep.,       Shaw   v.    U.    S.,    165    Fed.    Rep.,    174. 

§  196.  Postmaster,  etc.,  detaining  or  destroying  news- 
papers.— Whoever,  being  a  postmaster  or  other  person 
employed  in  any  department  of  the  postal  service,  shall 
improperly  detain  delay,  embezzle,  or  destroy  any  news- 
paper, or  permit  any  other  person  to  detain,  delay,  em- 
bezzle, or  destroy  the  same,  or  open,  or  permit  any  other 
person  to  open,  any  mail  or  package  of  newspapers  not 
directed  to  the  office  where  he  is  employed;  or  whoever 
shall  open,  embezzle,  or  destroy  any  mail  or  package  of 
newspapers  not  being  directed  to  him,  and  he  not  being 
authorized  to  open  or  receive  the  same;  or  whoever  shall 
take  or  steal  any  mail  or  package  of  newspapers  from 
any  post-office  or  from  any  person  having  custody  there- 
of, shall  be  fined  not  more  than  one  hundred  dollars,  or 
imprisoned  not  more  than  one  year,  or  both.  (R.  S.,  s. 
5471.) 

§  197.  Assaulting  mail  carrier  with  interit  to  rob,  and 
robbing  mail. — Whoever  shall  assault  any  person  having 
lawful  charge,  control,  or  custody  of  any  mail  matter, 
with  intent  to  rob,  steal,  or  purloin  such  mail  matter  or 
any  part  thereof,  or  shall  rob  any  such  person  of  such 
mail  or  any  part  thereof,  shall,  for  a  first  offense,  be  im- 
prisoned not  more  than  ten  years;  and  if  in  effecting  or 
attempting  to  effect  such  robbery,  he  shall  wound  the 
person  having  the  custody  of  the  mail,  or  put  his  life  in 
jeopardy  by  the  use  of  a  dangerous  weapon,  or  for  a  sub- 


840  Federal,  Criminal  Law  Procedure. 

sequent    offense,    shall  be  imprisoned  twenty-five  years. 
(R.  S.,  ss.  5472,  5473.) 

Harrison  v.  U.  S.,  163,  U.  S.,  140;  78,  28  Fed.  Cas.,  699;  U.  S.  v.  Reeves, 
38  Fed.  Rep.,  404;  U.  S.  v.  Bowman,  U.  S.  v.  Hare,  2  Wh.  Cr.  Cas.,  283,  26 
Fed.  Cas.,   148;  U.   S.  v.  Wilson,  Baldw.,  5    Pac.    Rep.,    333. 

§  198.  Injuring  letter  boxes  or  mail  matter;  assault- 
ing carrier,  etc. — Whoever  shall  wilfully  injure,  tear 
down,  or  destroy  any  letter  box,  pillar  box,  lock  box,' lock 
drawer,  or  other  receptacle  established  or  approved  by 
the  Postmaster-General  for  the  safe  deposit  of  matter  for 
the  mail  or  for  delivery,  or  any  lock  or  similar  device  be- 
longing or  attached  thereto,  or  any  letter  box  or  other 
receptacle  'designated  or  approved  by  the  Postmaster- 
General  for  the  receipt  or  delivery  of  mail  matter  on  any 
rural  free  delivery  route,  star  route,  or  other  mail  route, 
or  shall  break  open  the  same;  or  shall  wilfully  injure,  de- 
face, or  destroy  any  mail  matter  deposited  in  any  letter 
box,  pillar  box,  lock  box,  lock  drawer,  or  other  recepta- 
cle established  or  approved  by  the  Postmaster-General 
for  the  safe  deposit  of  matter  for  the  mail  or  for  deliv- 
ery; or  shall  willfully  take  or  steal  such  matter  from  or 
out  of  any  such  letter  box,  pillar  box,  lock  box,  lock 
drawer,  or  other  receptacle,  or  shall  willfully  and  ma- 
liciously assault  any  letter  or  mail  carrier,  knowing  him 
to  be  such,  while  engaged  on  his  route  in  the  discharge 
of  his  duty  as  such  carrier,  or  shall  willfully  aid  or  as- 
sist in  any  offense  defined  in  this  section,  shall  be  fined 
not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  three  years  or  both.  (R.  S.,  ss.  3869,  5466.  21 
Apr.,  1902,  32  Stat.  L.,  113  c.  563.  3  Mar.,  1903,  32  Stat. 
L.,  1175,  c.  1009,  s.  3.) 

§  199.  Deserting  the  mail. — Whoever,  having  taken 
charge  of  any  mail,  shall  voluntarily  quit  or  desert  the 
same  before  he  has  delivered  it  into  the  post  office  at 
the  termination  of  the  route,  or  to  some  known  mail  car- 
rier-messenger, agent,  or  other  employee  in  the  postal 
service  authorized  to  receive  the  same,  shall  be  fined  not 
more  than  five  hundred  dollars,  or  imprisoned  not  more 
than  one  year,  or  both.    (R.  S.,  s.  5474.) 

15    A.    G.    Op.,    70. 

§  200.  Delivery  of  letters  by  master  of  vessel. — The 
master  or  other  person  having  charge  or  control  of  any 


Offenses  Against  the  Postal  Service.  841 

steamboat  or  other  vessel  passing  between  ports  or  places 
in  the  United  States,  arriving  at  any  such  port  or  place 
where  there  is  a  postoffice,  shall  deliver  to  the 
postmaster  or  at  the  post-office  within  three  hours 
after  his  arrival,  if  in  the  daytime,  and  if  at 
night,  within  two  hours  after  the  next  sunrise,  all  letters 
and  packages  brought  by  him  or  within  his  power  or 
control  and  not  relating  to  the  cargo,  addressed  to  or 
destined  for  such  port  or  place,  for  which  he  shall  receive 
from  the  postmaster  two  cents  for  each  letter  or  package 
so  delivered,  unless  the  same  is  carried  under  a  contract 
for  carrying  the  mail;  and  for  every  failure  so  to  deliver 
such  letters  or  packages,  the  master  or  other  person  hav- 
ing charge  or  control  of  such  steamboat  or  other  vessel, 
shall  be  fined  not  more  than  one  hundred  and  fifty  dol- 
lars.   (R.  S.,  s.  3977.) 

§  201.  Obstructing  the  mail. — Whoever  shall  know- 
ingly and  willfully  obstruct  or  retard  the  passage  of  the 
mail,  or  any  carriage,  horse,  driver,  or  carrier,  or  car, 
steamboat  or  other  conveyance  or  vessel  carrying  the 
same,  shall  be  fined  not  more  than  one  hundred  dollars, 
or  imprisoned  not  more  than  six  months,  or  both.  (R.  S., 
s.  3995.) 

U.  S.  v.  Kirby,  7  Wall.,  482;  Re  2  Haskell,  164,  27  Fed.  Cas.,  1312;  U. 
Debs,  158  U.  S.,  564;  Clune  v.  U.  S.,  S.  v.  De  Mott,  3  Fed.  Rep.,  478;  U. 
159    U.    S.,    590;    U.    S.    v.    Barney,    3        S.    v.    Clavpool.    14    Fed.    Rep.,    127;    U. 


Hughes,  545,  24  Fed.  Cas.,  1014;  U 
S.  v.  Clark,  13  Phila.,  476,  25  Fed 
Cas.,  443;  U.  S.  v.  Hart,  Pet.  C.  C. 
390;  26  Fed.  Cas.,  193;  U.  S.  v.  Har 
vey,  1  Brunner,  540,  26  Fed.  Cas.,  206 
U.  S.  v.  McCracken.  3  Hughes,  544 
26    Fed.    Cas.,    1049;    U.    S.    v.    Stevens 


S.    v.    Kane,     19    Fed.     Rep.,    42;  U.    S. 

v.   Woodward,    44    Fed.    Rep.,    592;  U.    S. 

v.    Sears,    55    Fed.    Rep.,    268;    U.  S.    v. 

Thomas,     55     Fed.    Rep..    380;     U.  S.    v. 

Cassidy,    67    Fed.    Rep..    698:    Salla  v.    U. 

S.,    104    Fed.    Rep.,    544;    Conrad  v.    U. 
S.,    127    Fed.    Rep.,    798. 


§  202.  Ferryman  delaying  the  mail. — Whoever,  being 
a  ferryman,  shall  delay  the  passage  of  the  mail  by  willful 
neglect  or  refusal  to  transport  the  same  across  any  ferry, 
shall  be  fined  not  more  than  one  hundred  dollars.  (R.  S., 
s.  3996.) 

§  203.  Letters  carried  in  a  Foreign  vessel  to  be  de- 
posited in  a  post-office. — All  letters  or  other  mailable  mat- 
ter conveyed  to  or  from  any  part  of  the  United  States  by 
any  foreign  vessel,  except  such  sealed  letters  relating  to 
such  vessel  or  any  part  of  the  cargo  thereof  as  may  be 
directed  to  the  owners  or  consignees  of  the  vessel,  shall 
be  subject  to  postage  charge,  whether  addressed  to  any 
person  in  the  United  States  or  elsewhere,  provided  they 


842  Federal  Criminal  Law  Procedure. 

are  conveyed  by  the  packet  or  other  ship  of  a  foreign 
country  imposing  postage  on  letters  or  other  mailable 
matter  conveyed  to  or  from  such  country  by  any  vessel 
of  the  United  States;  and  such  letters  or  other  mailable 
matter  carried  in  foreign  vessels,  except  such  sealed  let- 
ters relating  to  the  vessel  or  any  part  of  the  cargo  there- 
of as  may  be  directed  to  the  owners  or  consignees,  shall 
be  delivered  into  the  United  States  post-office  by  the  mas- 
ter or  other  person  having  charge  or  control  of  such  ves- 
sel when  arriving,  and  be  taken  from  the  United  States, 
post-office  when  departing,  and  the  postage  justly  charge- 
able by  law  paid  thereon;  and  for  refusing  or  failing  to 
do  so,  or  for  conveying  such  letters  or  other  mailable 
matter,  or  any  letters  or  other  mailable  matter,  intended 
to  be  conveyed  in  any  vessel  of  such  foreign  country,  over 
or  across  the  United  States,  or  any  portion  thereof,  the 
party  offending  shall  be  fined  not  more  than  one  thou- 
sand dollars.    (R.  S.,  s.  4016.) 

§  204.  Vessel's  to  deliver  letters  at  post-office;  oath. — 
No  vessel  arriving  within  a  port  or  collection  district  of 
the  United  States  shall  be  allowed  to  make  entry  or 
break  bulk  until  all  letters  on  board  are  delivered  to  the 
nearest  post-office,  and  the  master  or  other  person  hav- 
ing charge  or  control  thereof  has  signed  and  sworn  to  the 
following  declaration  before  the  collector  or  other  prop- 
er customs  officer: 

I,  A.  B.,   master ,  of  the  ,  arriving 

from ,  and  now  lying  in  the  port  of ,  do 

solemnly  swear  (or  affirm)  that  I  have  to  the  best  of  my 
knowledge    and    belief   delivered    to    the    post-office    at 

every  letter  and  every  bag,  packet,  or  parcel  of 

letters  which  was  on  board  the  said  vessel  during  her 
last  voyage,  or  which  were  in  my  possession  or  under  my 
power  or  control. 

And  any  master  or  other  person  having  charge  or  con- 
trol of  such  vessel  who  shall  break  bulk  before  he  has  de- 
livered such  letters  shall  be  fined  not  more  than  one  hun- 
dred dollars.    (R.  S.,  s.  3988.) 

205.  Using,  selling,  etc.,  canceled  stamps;  removing 
cancellation  marks  from  stamps,  etc. — Whoever  shall  use 
or     attempt     to     use     in     payment     of     postage,     any 


Offenses  Against  the  Postal,  Seevice.  843 

canceled  postage  stamp,  whether  the  same  has  been 
used  or  not;  or  shall  remove,  attempt  to  remove, 
or  assist  in  removing,  the  canceling  or  defacing 
marks  from  any  postage  stamp,  or  the  superscrip- 
tion from  any  stamped  envelope,  or  postal  card,  that 
has  once  been  used  in  payment  of  postage,  with  the  in- 
tent to  use  the  same  for  a  like  purpose,  or  to  sell  or  offer 
to  sell  the  same,  or  shall  knowingly  have  in  possession 
any- such  postage  stamp  envelope,  or  postal  card,  with  in- 
any  such  postage  stamp,  stamped  envelope,  or  pos- 
tal card,  with  intent  to  use  the  same,  or  shall 
knowingly  sell  or  offer  to  sell  any  such  postage 
stamp,  stamped  envelope,  or  postal  card,  or  use 
or  attempt  to  use  the  same  in  payment  of  post- 
age; or  whoever  unlawfully  and  willfully  shall  re- 
move from  any  mail  matter  any  stamp  attached  there- 
to in  payment  of  postage;  or  shall  knowingly  use  or  cause 
to  be  used  in  payment  of  postage,  any  postage  stamp, 
postal  card,  or  stamped  envelope,  issued  in  pursuance  of 
law,  which  has  already  been  used  for  a  like  purpose; 
shall,  if  he  be  a  person  employed  in  the  postal  service,  be 
fined  not  more  than  five  hundred  dollars,  or  imprisoned 
not  more  than  three  years,  or  both;  and  if  he  be  a  per- 
son not  employed  in  the  postal  service,  shall  be  fined  not 
more  than  five  hundred  dollars,  or  imprisoned  not  more 
than  one  vear,  or  both.  (R.  S.,  ss.  3922,  3923,  3924,  3925. 
.3  Mar.,  1879,  20  Stat.  L.,  362,  c.  180,  s.  28;  1  Supp.,  249.) 

§  206.  False  returns  to  increase  compensation.— Who- 
ever, being  a  postmaster  or  other  person  employed  in 
any  branch  of  the  postal  service,  shall  make,  or  assist 
in  making,  or  cause  to  be  made,  a  false  return,  statement, 
or  account  to  any  officer  of  the  United  States,  or  shall 
make,  assist  in  making,  or  cause  to  be  made,  a  false  en- 
try in  any  record,  book,  or  account,  required  by  law  or 
the  rules  or  regulations  of  the  Post-Office  Department  to 
be  kept  in  respect  of  the  business  or  operations  of  any 
post-office  or  other  branch  of  the  postal  service,  for  the 
purpose  of  fraudulently  increasing  his  compensation  or 
the  compensation  of  the  postmaster  or  any  employee  in 
a  post-office;  or  whoever,  being  a  postmaster  or  other  per- 
son employed  in  any  post-office  or  station  thereof  shall 


844  Federal  Criminal  Law  Procedure. 

induce,  or  attempt  to  induce,  for  the  purpose  of  increas- 
ing the  emoluments  or  compensation  of  his  office,  any  per- 
son to  deposit  mail  matter  in,  or  forward  in  any  manner 
for  mailing  at,  the  office  where  such  postmaster  or  other 
person  is  employed,  knowing  such  matter  to  be  properly 
mailable  at  another  post-office,  shall  be  fined  not  more 
than  five  hundred  dollars,  or  imprisoned  not  more  than 
two  years,  or  both.  (17  June,  1878,  20  Stat.  L.,  141,  c. 
259,  s.  1;  1  Supp.,  186.  4  Aug.,  1886,  24  Stat.  L.,  221,  c. 
901,  s.  3;  lSupp.,  512.) 

U.    S.   v.    Snyder,    14   Fed.    Rep.,    554. 

§  207.  Collection  of  unlawful  postage  forbidden.— 
Whoever,  being  a  postmaster  or  other  person  authorized 
to  receive  the  postage  of  mail  matter,  shall  fraudulently 
demand  or  receive  any  rate  of  postage  or  gratuity  or  re- 
ward other  than  is  provided  by  law  for  the  postage  of 
such  mail  matter,  shall  be  fined  not  more  than  one  hun- 
dred dollars,  or  imprisoned  not  more  than  six  months,  or 
both.     (R.  S.,  s.  3899.) 

§  208.  Unlawful  pledging  or  sale  of  stamps. — Who- 
ever, being  a  postmaster  or  other  person  employed  in  any 
branch  of  the  postal  service,  and  being  intrusted  with  the 
sale  or  custody  of  postage  stamps,  stamped  envelopes,  or 
postal  cards,  shall  use  or  dispose  of  them  in  the  payment 
of  debts,  or  in  the  purchase  of  merchandise  or  other  sala- 
ble articles,  or  pledge  or  hypothecate  the  same,  or  sell  or 
dispose  of  them  except  for  cash;  or  sell  or  dispose  of  post- 
age stamps  or  postal  cards  for  any  larger  or  less  sum  than 
the  values  indicated  on  their  faces;  or  sell  or  dispose  of 
stamped  envelopes  for  a  larger  or  less  sum  than  is 
charged  therefor  by  the  Post-Office  Department  for  like 
quantities;  or  sell  or  dispose  of,  or  cause  to  be  sold  or 
disposed  of,  postage  stamps,  stamped  envelopes,  or  pos- 
tal cards  at  any  point  or  place  outside  of  the  delivery  of 
the  office  where  such  postmaster  or  other  person  is  em- 
ployed; or  induce  or  attempt  to  induce,  for  the  purpose 
of  increasing  the  emoluments  or  compensation  of  such 
postmaster,  or  the  emoluments  or  compensation  of  any 
other  person  employed  in  such  post-office  or  any  station 
thereof,  or  the  allowances  or  facilities  provided  therefor, 
any  person  to  purchase  at  such  post-office  or  any  station 


Offenses  Against  the  Postal,  Service.  845 

thereof,  or  from  any  employee  of  such  post-office,  post- 
age stamps,  stamped  envelopes,  or  postal  cards;  or  sell  or 
dispose  of  postage  stamps,  stamped  envelopes,  or  postal 
cards,  otherwise  than  as  provided  by  law  or  the  regula- 
tions of  the  Post-Office  Department,  shall  be  fined  not 
more  than  five  hundred  dollars,  or  imprisoned  not  more 
than  one  year,  or  both.  (R.  S.,  s.  3920.  17  June,  1878,  20 
Stat.  L.,  141,  c.  259,  s.  1;  1  Supp.,  186.) 

Palliser  v.    U.   S.,    136   U.    S.,   257;    U.        U.    S.    v.    Wa.ter    Scott    Stamp    Co.,     b7 
S.    v.     Williamson,    26     Fed.     Rep.,     690:         Fed.    Rep.,    721. 
U.    S.    v.    Douglass,    33    Fed.    Hep.,    381; 

§  209.  Failure  to  account  for  postage  and  to  cancel 
stamps,  etc.,  by  officials. — Whoever,  being  a  postmaster 
or  other  person  engaged  in  the  postal  service,  shall  col- 
lect and  fail  to  account  for  the  postage  due  upon  any  ar- 
ticle of  mail  matter  which  he  may  deliver,  without  hav- 
ing previously  affixed  and  canceled  the  special  stamp  pro- 
vided by  law,  or  shall  fail  to  affix  such  stamp,  shall  be 
fined  not  more  than  fifty  dollars.  (3  Mar.,  1879,  20  Stat. 
L.;  362,  c.  180,  s.  27;  1  Supp.,  249.) 

§  210.  Issuing  money  order  without  payment. — Who- 
ever, being  a  postmaster  or  other  person  employed  in  any 
branch  of  the  postal  service,  shall  issue  a  money  order 
without  having  previously  received  the  money  therefor, 
shall  be  fined  not  more  than  five  hundred  dollars.  (R. 
S.,  s.  4030.) 

§  211.  Obscene,  etc.,  matter  nonmailable. — Every  ob- 
scene, lewd,  or  lascivious,  and  every  filthy,  book,  pam- 
phlet, picture,  paper,  letter  writing,  print  or  other  publi- 
cation of  an  indecent  character,  and  every  article  or  thing 
designed,  adapted,  or  intended  for  preventing  concep- 
tion or  producing  abortion,  or  for  any  indecent  or  immor- 
al use;  and  every  article,  instrument,  substance,  drug, 
medicine,  or  thing  which  is  advertised  or  described  in  a 
manner  calculated  to  lead  another  to  use  or  apply  it  for 
preventing  conception  or  producing  abortion,  or  for  any 
indecent  or  immoral  purpose ;  and  every  written  or  print- 
ed card,  letter,  circular,  book,  pamphlet,  advertisement, 
or  notice  of  any  kind  giving  information  directly  or  in- 
directly, where,  or  how,  or  from  whom,  or  by  what  means 
any  of  the  hereinbefore-mentioned  matters,  articles,  or 
things  may  be  obtained  or  made,  or  where  or  by  whom 


846  Federal  Criminal  Law  Procedure. 

any  act  or  operation  of  any  kind  for  the  procuring  or  pro- 
ducing of  abortion  will  be  done  or  performed,  or  how  or 
by  what  means  conception  may  be  prevented  or  abortion 
produced,  whether  sealed  or  unsealed;  and  every  letter, 
packet,  or  package,  or  other  mail  matter  containing  any 
filthy,  vile,  or  indecent  thing,  device,  or  substance;  and 
every  paper,  writing,  advertisement,  or  representation 
thai  any  article,  instrument,  substance,  drug,  medicine, 
or  thing  may,  or  can  be,  used  or  applied  for  preventing 
conception  or  producing  abortion,  or  for  any  indecent  or 
immoral  purpose;  and  every  description  calculated  to  in- 
duce or  incite  a  person  to  so  use  or  apply  any  such  arti- 
cle, instrument,  substance,  drug,  medicine,  or  thing,  is 
hereby  declared  to  be  non-mailable  matter  and  shall  not 
be  conveyed  in  the  mails  or  delivered  from  any  post-of- 
fice or  by  any  carrier.  Whoever  shall  knowingly  deposit, 
or  cause  to  be  deposited  for  mailing  or  delivery,  any- 
thing declared  by  this  section  to  be  non-mailable,  or  shall 
knowingly  take,  or  cause  the  same  to  be  taken,  from  the 
mails  for  the  purpose  of  circulating  or  disposing  thereof, 
or  of  aiding  in  the  circulation  or  disposition  thereof,  shall 
be  fined  not  more  than  five  thousand  dollars,  or  impris- 
oned not  more  than  five  years,  or  both.     (R.  S.,  s.  3893. 

26  Sept.,  1888,  25  Stat.  L.',  496,  c.  1039,  s.  2;  1  Supp.,  621. 

27  May,  1908,  35  Stat.  L.,  416  c.  206.) 

Ex    parte   Jackson,    96    U.    S-,    727;    Re  Rep.,     731;     U.     S.     v.     Morris,     18     Fed. 

Rapier,    143    U.    S.,    110;    U.    S.   v.    Chase,  Rep.,     900;     U.     S.     v.     Moore,     19     Fed. 

135     U.     S.,     255,     27     Fed.     Rep.,     807;  Rep.,    39;    U.     S.    v.    Chisman,     19     Fed. 

Grimm    v.     U.     S.,     156    U.     S.,     604,     50  Rep.,    497;    U.    S.    v.    Comerford,   25    Fed. 

Fed.   Rep..    528;    Rosen   v.    U.    S.,    161    U.  Rep.,    902;     U.     S.    v.     Thomas,    27     Fed. 

S.,     29;     Swearingen    v.     U.     S..     161     U.  Rep.,     882;     U.     S.    v.     Bebout,     28     Fed. 

S.,   446;    Andrews   v.    U.    S.,    162    U.    S.,  Rep.,    522;    U.    S.   v.   Wightman.   29    Fed. 

420,   58   Fed.   Rep.,    768;    Price  v.   U.    S.,  Rep.,   636;   U.   S.  v.   Rapp,  30  Fed.  Rep., 

165    U.    S..    311:     Dunlop    v.    U.    S.,    165  818;    Ex   parte   Doran.    32    Fed.    Rep.,    76; 

U.     S.,     486;     Re     Tackson.     14     Blatch.,  U.    S.    v.     Slenker,    32    Fed.    Rep..    691; 

245,    13    Fed.    Cas..    194;    U.    S.    v.    Ben-  U.    S.   v.    Harmon,    34    Fed.   Rep.,    872,    45 

nett.    16   Blatch.,   338.  24  Fed.   Cas.,   1093;  Fed.    Rep..    414,    50    Fed.    Rep.,    921;    U. 

U.    S.   v.    Bott,    11    Blatch.,    346,    24    Fed.  S.  v.  Mathias.   36   Fed.   Rep..   892;   U.   S. 

U.     S.     v.     Cottingham,     2  v.    Clark,    37    Fed.    Rep.,    106;    U.    S.    v. 

Blatch..     470,     25     Fed.     Cas..     673;     U.  Davis,   38  Fed.   Rep.,   326;  U.   S.  v. Clarke. 

S.    v.    Foote,    13    Blatch.,    418,    25    Fed.  38    Fed.    Rep.,    500,    732,    40    Fed.    Rep., 

Cas.,    1140;    U.    S.    v.    Foye.    1     Curtis,  325;    U.    S.    v.    Harman,    38    Fed.    Rep., 

364.   25    Fed.   Cas.,    1198;     U.   S.   v.   Kelly,  827;     I*.     S.    v.     Huggitt,    40    Fed.    Rep., 

Sawy..    566,    26    Fed.    Cas.,    695;    U.  636;    Re    Wahll,    42    Fed.    Rep.,    822;    U. 

Pond,   2    Curtis,    265,   2   Fed.    Cas..  S.     v.     Clark,     43     Fed.     Rep.,     574:     U. 

591;    IT.    S.    v.   Pratt.    2   Am.   L.   T.    Rep.  S.    v.    Smith,    45    Fed.    Rep.,    476;    U.    S. 

(N.     S.),    228,    27    Fed.     Cas..    611;     U.  v.     Durant,    46    Fed.    Rep.,    753;      U.    S. 

S.    v.    Whittier,    5    Dill.    35.    28    Fed.    Cas..  v.     Martin.     50     Fed.     Rep..     918:     U.     S. 

591;     lr.     S.    v.    Williams.    3    Fed.    Rep..  v.    Males,    51    Fed.    Rep..    41;    IT.    S.    v. 

484:    I  .   U.    S..    10    Fed.    Rep.,   92;  Wilson,     58     Fed.    Ren..     768;    T1.    S.    v. 

S.    v.    Smith,    11    Fed.    Rep..    663:    U.  Warner,     59    Fed.     Rep.,     355;    U.     S.    v. 

S.     v.     Kaltmeycr.     16     Fed.     Rep..     760:  Tarvis.     59     Fed.     Rep..     357;     U.     S.     v. 

TT.    S.    v.    Hanover.    17    Fed.    Rep..    444:  Nathan.     61     Fed.     Rep..     936;     U.     S.    v. 

U.    S.   v.   Gaylord.    17    Fed.   Rep.,   438.    50  T,ing.   61    Fed.   Ren.,    1001:   U.    S.  v.   Fvd- 

Fcd.  Rep.,    HO;   TT.  S.  v.  Britton,   17  Fed.  ler,    72    Fed.    Rep.',    771;    U.    S.    v.    Reid, 


Offenses  Against  the  Postal  Service. 


847 


73  Fed.  Rep.,  289;  U.  S.  v.  Lamkin, 
73  Fed.  Rep.,  459;  U.  S.  v.  Janes,  74 
Fed.  Rep.,  545;  U.  S.  v.  Brazeau,  78 
Fed.  Rep.,  464;  Safter  v.  U.  S.,  87  Fed. 
Rep.,  329;  U.  S.  v.  Tubbs,  94  Fed.  Rep.. 
356;  U.  S.  v.  Moore,  104  Fed.  Rep., 
78;  U.  S.  v.  Clifford,  104  Fed.  Rep., 
296;  De  Gignac  v.  U.  S.,  113  Fed.  Rep.. 
197;  U.  S.  v.  Wyatt,  122  Fed.  Rep., 
316;  U.  S.  v.  Harris,  122  Fed.  Rep., 
551;  Harvey  v.  U.  S.,  126  Fed.  Rep., 
357;  U.  S.  v.  Moore,  129  Fed.  Rep., 
159;    U.    S.    v.    Pupke,    133    Fed.    Rep., 


243;  Burton  v.  U.  S.,  142  Fed.  Rep.. 
57;  Demolli  v.  U.  S.,  144  Fed.  Rep., 
363;  Rinker  v.  U.  S.,  151  Fed.  Rep., 
755;  Lee  v.  U.  S.,  156  Fed.  Rep.,  948; 
Hanson  v.  U.  S.,  157  Fed.  Rep..  749; 
U.  S.  v.  Musgrave,  160  Fed.  Rep.,  700; 
Shepard  v.  U.  S.,  160  Fed.  Rep.,  584; 
U.  S.  v.  O'Donnell,  165  Fed.  Rep.,  21S; 
U.  S.  v.  Benedict,  165  Fed.  Rep.,  221; 
Barnes  v.  U.  S.,  166  Fed.  Rep.,  113; 
Knowles  v.  U.  S.,  170  Fed.  Rep.,  409. 
U.  S.  v.  Somers,  164  Fed.  Rep.,  259; 
McFadden   v.    U.    S.,    165    Fed.    Rep.,    51; 


§  212.  Libelous  and  indecent  envelopes  and  wrappers. 
I — All  matter  otherwise  mailable  by  law,  upon  the  en- 
velope or  outside  cover  or  wrapper  of  which,  or  any  pos- 
tal card  upon  which,  any  delineations,  epithets,  terms,  or 
language  of  an  indecent,  lewd,  lascivious,  obscene,  libel- 
ous, scurrilous,  defamatory,  or  threatening  character,  or 
calculated  by  the  terms  or  manner  or  style  of  display  and 
obviously  intended  to  reflect  injuriously  upon  the  char- 
acter or  conduct  of  another,  may  be  written  or  printed  or 
otherwise  impressed  or  apparent,  are  hereby  declared 
non-mailable  matter,  and  shall  not  be  conveyed  in  the 
mails  nor  delivered  from  any  post-office  nor  by  any  let- 
ter carrier,  and  shall  be  withdrawn  from  the  mails  under 
such  regulations  as  the  Postmaster-General  shall  pre- 
scribe. Whoever  shall  knowingly  deposit  or  cause  to  be 
deposited,  for  mailing  or  delivery,  anything  declared  by 
this  section  to  be  non-mailable  matter,  or  shall  knowing- 
ly take  the  same  or  cause  the  same  to  be  taken  from  the 
mails  for  the  purpose  of  circulating  or  disposing  of  or 
aiding  in  the  circulation  or  disposition  of  the  same,  shall 
be  fined  not  more  than  five  thousand  dollars,  or  impris- 
oned not  more  than  five  years,  or  both.  (26  Sept.,  1888, 
25  Stat.  L.,  496,  c.  1039,  s.  1;  1  Supp.,  621.) 


U.  S.  v.  Smith,  11  Fed.  Rep.,  663 
Ex  parte  Doran,  32  Fed.  Rep.,  76;  U 
S.  v.  Barber,  37  Fed.  Rep.,  55;  U 
S.  v.  Davis,  38  Fed.  Rep.,  326;  U.  S 
v.  Bayle,  40  Fed.  Rep.,  664;  U.  S.  v 
Brown,  43  Fed.  Rep.,  135;  U.  S.  v, 
Gee,    45    Fed.    Rep.,    194;     U.    S.    v.    El- 


liott, 51  Fed.  Rep.,  807;  U.  S.  v.  Jarvis, 
59  Fed.  Rep.,  357;  U.  S.  v.  Simmons, 
61  Fed.  Rep.,  640;  U.  S.  v.  Smith,  69 
Fed.  Rep.,  971;  U.  S.  v.  Dodge,  70 
Fed.  Rep.,  235;  U.  S.  v.  Burnell,  75 
Fed.  Rep.,  824;  Re  Barber,  75  Fed. 
Rep.,    980. 


§  213.  Lottery,  gift,  enterprise  etc.,  circulars,  etc.,  not 
mailable. — No  letter,  package,  postal  card,  or  circular 
concerning  any  lottery,  gift  enterprise,  or  similar  scheme 
offering  prizes  dependent  in  whole  or  in  part  upon  lot  or 
chance;  and  no  lottery  ticket  or  part  thereof,  or  paper, 
certificate,  or  instrument  purporting  to  be  or  to  repre- 
sent a  ticket,  chance,  share  or  interest  in  or  dependent 


848 


Fedeeal  Ceiminal  Law  PeoceduEE. 


upon  the  event  of  a  lottery  gift  enterprise,  or  similar 
scheme  offering  prizes  dependent  in  whole  or  in  part  up- 
on lot  or  chance;  and  no  check,  draft,  bill,  money,  postal 
note,  or  money  order,  for  the  purchase  of  any  ticket  or 
part  thereof  or  of  any  share  or  chance  in  any  such  lot- 
tery, gift  enterprise,  or  scheme;  and  no  newspaper,  cir- 
cular, phampjet,  or  publication  of  any  kind  containing 
any  advertisement  of  any  lottery,  gift  enterprise,  or 
scheme  of  any  kind  offering  prizes  dependent  in  whole 
or  in  part  upon  lot  or  chance,  or  containing  any  list  of  the 
prizes  drawn  or  awarded  by  means  of  any  such  lottery, 
gift  enterprise,  or  scheme,  whether  said  list  contains  any 
part  or  all  of  such  prizes,  shall  be  deposited  in  or  carried 
by  the  mails  of  the  United  States  or  be  delivered  by  any 
postmaster  or  letter  carrier.  Whoever  shall  knowingly 
deposit  or  cause  to  be  deposited,  or  shall  knowingly  send 
or  cause  to  be  sent  anything  to  be  conveyed  or  delivered 
by  mail  in  violation  of  the  provisions  of  this  section,  or 
shall  knowingly  deliver  or  cause  to  be  delivered  by  mail 
anything  herein  forbidden  to  be  carried  by  mail,  shall 
be  fined  not  more  than  one  thousand  dollars,  or  impris- 
oned not  more  than  two  years,  or  both;  and  for  any  sub- 
sequent offense  shall  be  imprisoned  not  more  than  five 
years.  Any  person  violating  any  provision  of  this  sec- 
tion may  be  tried  and  punished  either  in  the  district  in 
which  the  unlawful  matter  or  publication  was  mailed,  or 
to  which  it  was  carried  by  mail  for  delivery  according  to 
the  direction  thereon,  or  in  which  it  was  caused  to  be  de- 
livered bv  mail  to  the  person  to  whom  it  was  addressed. 
(R.  S.,  s.  3894.  19  Sept.,  1890,  26  Stat.  L.,  465,  c.  908,  s. 
1;  1  Supp.,  803.    2  Mar.,  1895,  28  Stat.  L.,  963,  c.  191,  s. 


l;2Supp.,  435.) 

Ex  parte  Jackson,  96  U.  S.,  727; 
Re  Rapier,  143  U.  S.,  110;  Horner  v. 
U.  S.,  143  U.  S.,  570,  147  U.  S.,  449 
Mac  Daniel  v.  U.  S.,  171  U.  S.,  68<» 
87  Fed.  Rep.,  324;  U.  S.  v.  Parsons 
2  Blatch.,  107,  27  Fed.  Cas.,  451:  U 
S.  v.  Noelkc,  1  Fed.  Rep.,  426;  U.  S.  v 
Patty,  2  Fed.  Rep.,  664;  U.  S.  v.  Duff 
6  Fed.  Rep.,  45;  U.  S.  v.  Moore,  19 
Fed.  Rep.,  39;  U.  S.  v.  Dauphin,  20 
Fed.  Rep.,  625;  U.  S.  v.  Mason,  22 
Rep.,  707;  U.  S.  v.  Clark,  22 
Fed.  Rep.,  708;  U.  S.  v..  Jackson,  29 
I  Rep.,     503;     U.     S.     v.     Zeisler,     30 

Fed.   Rep.,   499;   U.    S.   v.   Jones,   31    Fed. 


Rep.,  718;  U.  S.  v.  Horner,  44  Fed. 
Rep.,  677;  U.  S.  v.  Bailev,  47  Fed. 
Rep.,  117;  U.  S.  v.  Lynch,  49  Fed. 
Rep.,  851;  U.  S.  v.  Wallis,  58  Fed. 
Rep.,  942;  U.  S.  v.  Politzer,  59  Fed. 
Rep.,  273;  U.  S.  v.  Conrad,  59  Fed. 
Rep.,  458;  MacDonald  v.  U.  S.,  63  Fed. 
Rep.,  426;  U.  S.  v.  McDonald,  65  Fed. 
Rep.,  486;  U.  S.  v.  Fulkerson,  74  Fed. 
Rep.,  619;  Hoover  v.  McChesney,  81 
Fed.  Rep.,  472;  U.  S.  v.  Rosenblum,  121 
Fed.  Rep.,  180;  U.  S.  v.  Irvine.  156 
Fed.  Rep.,  376;  Fitzsimmons  v.  U.  S.. 
156    Fed.    Rep.,    439. 


Offenses  Against  the  Postal,  Service.  849 

§  214.  Postmasters  not  to  be  lottery  agents. — Who- 
ever, being  a  postmaster  or  other  person  employed  in  the 
postal  service,  shall  act  as  agent  for  any  lottery  office,  or 
under  color  of  purchase  or  otherwise,  vend  lottery  tick- 
ets, or  shall  knowingly  send  by  mail  or  delivery  any  let- 
ter, package,  postal  card,  circular,  or  pamphlet  advertis- 
ing any  lottery,  gift  enterprise,  or  similar  scheme  offer- 
ing prizes  depending  in  whole  or  in  part  upon  any  lot  or 
chance,  or  any  ticket,  certificate,  or  instrument  represent- 
ing any  chance,  share,  or  interest  in  or  dependent  upon 
the  event  of  any  lottery,  gift,  enterprise,  or  similar  scheme 
offering  prizes  dependent  in  whole  or  in  part  upon  lot  or 
chance,  or  any  list  of  the  prizes  awarded  by  means  of  any 
scheme,  shall  be  fined  not  more  than  one  hundred  dollars, 
or  imprisoned  not  more  than  one  year,  or  both.  (R.  S., 
s.  3851.)  f!W| 

§  215.  Use  of  mails  to  promote  frauds. — Whoever, 
having  devised  or  intending  to  devise  any  scheme  or  ar- 
tifice to  defraud,  or  for  obtaining  money  or  property  by 
means  of  false  or  fraudulent  pretenses,  representations, 
or  promises,  or  to  sell,  dispose  of,  loan,  exchange,  alter, 
give  away,  distribute,  supply,  or  furnish  or  procure  for 
unlawful  use  any  counterfeit  or  spurious  coin,  bank  note, 
paper  money,  or  any  obligation  or  security  of  the  United 
States,  or  of  any  State,  Territory,  municipality,  com- 
pany, corporation,  or  person  or  anything  represented  to 
be  or  intimated  or  held  out  to  be  such  counterfeit  or 
spurious  article,  or  any  scheme  or  artifice  to  obtain  mon- 
ey by  or  through  correspondence,  by  what  is  commonly 
called  the  "saw-dust  swindle,"  or  "counterfeit-money 
fraud,"  or  by  dealing  or  pretending  to  deal  in  what  is 
commonly  called  ' '  green  articles, "  "  green  coin, "  "  green 
goods,"  "bills,"  "paper  goods,"  "spurious  Treasury 
notes,"  "United  States  goods,"  "green  cigars,"  or  any 
other  names  or  terms  intended  to  be  understood  as  relat- 
ing to  such  counterfeit  or  spurious  articles,  shall,  for  the 
purpose  of  executing  such  scheme  or  artifice  or  attempt- 
ing so  to  do,  place,  or  cause  to  be  placed  any  letter,  pos- 
tal card,  package,  writing,  circular  pamphlet,  or  adver- 
tisement whether  addressed  to  any  person  residing  with- 
in or  outside  the  United  States,  in  any  post-office,  or  sta- 

54 


850 


Federal  Criminal  Law  Procedure. 


tion  thereof,  or  street  or  other  letter  box  of  the  United 
States,  or  authorized  depository  for  mail  matter,  to  be 
sent  or  delivered  by  the  post-office  establishment  of  the 
United  States,  or  shall  take  or  receive  any  such  therefrom 
whether  mailed  within  or  without  the  United  States, 
or  shall  knowingly  cause  to  be  delivered  by  mail  accord- 
ing to  the  direction  thereon,  or  at  the  place  at  which  it 
is  directed  to  be  delivered  by  the  person  to  whom  it  is 
addressed,  any  such  letter,  postal  card,  package,  writ- 
ing, circular,  pamphlet,  or  advertisement,  shall  be  fined 
not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  five  years,  or  both.  (R.  S.,  s.  5480.  2  Mar., 
1889,  25  Stat.  L.,  873,  c.  393  s.  1;  1  Supp.,  694.) 


Re  Henry,  123  U.  S.,  372;  U.  S. 
v.  Hess,  124  U.  S.,  483;  Stokes  v.  U. 
S.,  157  U.  S.,  187;  Streep  v.  U.  S. 
160  U.  S.,  128;  Durland  v.  U.  S.,  161 
U.  S.,  306;  Brand  v.  U.  S.,  4  Fed. 
Rep.,  394;  U.  S.  v.  Nye,  4  Fed.  Rep., 
888;  U.  S.  v.  Jones,  10  Fed.  Rep.,  469; 
U.  S.  v.  Stickle,  15  Fed.  Rep.,  798; 
U.  S.  v.  Owens,  17  Fed.  Rep.,  72;  U. 
S.  v.  Fleming,  18  Fed.  Rep.,  907;  U. 
S.  v.  Martin,  28  Fed.  Rep.,  812;  U. 
S.  v.  Wooten,  29  Fed.  Rep.,  702;  Re 
Haynes,  30  Fed.  Hep.,  767;  U.  S.  v. 
Hoeflinger,  33  Fed.  Rep.,  469;  U.  S. 
v.  Watson,  35  Fed.  Rep.,  358;  U.  S. 
v.  Mitchell,  36  Fed.  Rep.,  492;  U.  S. 
v.  Ried,  42  Fed.  Rep.,  134  U.  S.  v. 
Finney,  45  Fed.  Rep.,  41;  U.  S.  v. 
Staples,  45  Fed.  Rep.,  195;  U.  S.  v. 
Smith,  45  Fed.  Rep.,  561;  U.  S.  v. 
Beatty,  60  Fed.  Rep.,  740;  Weeber  v. 
U.  S.,  62  Fed.  Rep.,  740;  U.  S.  v. 
Harris,  68  Fed.  Rep.,  348;  U.  S.  v. 
Beach,  71  Fed.  Rep.,  160;  U.  S.  v. 
Charles,  74  Fed.  Rep.,  142;  Howard 
v.  U.  S.,  75  Fed.  Rep.,  986;  Culp  v.  U. 
S.,  82  Fed.  Rep.,  990;  U.  S.  v.  Fay,  83 
Fed.  Rep.,  839;  U.  S.  v.  Bernard,  84 
Fed.  Rep.,  634;  Tingle  v.  U.  S.,  87 
Fed.  Rep.,  320;  U.  S.  v.  Sauer,  88 
Fed.  Rep.,  249;  U.  S.  v.  Loring,  91 
Fed.  Rep.,  881;  14  A.  G.  Op.,  18; 
20  A.  G.  Op.,  296;  Milby  v.  U.  S.,  109 
Fed.  Rep.,  638;  Packer  v.  U.  S.,  106 
Fed.  Rep.,  906:  Larkin  v.  U.  S.,  107 
Fed.  Rep.,  697;  U.  S.  v.  Post,  113 
Fed.  Rep.,  852;  Hume  v.  U.  S.,  118 
Fed.  Rep.,  689;  U.  S.  v.  Horman,  118 
Fed.  Rep.,  780;  Stewart  v.  U.  S.,  119 
Fed.  Rep.,-  89;   Milby  v.   U.   S.,   120  Fed. 


Rep.,  1;  O'Neill  v.  U.  S.,  120  Fed. 
Rep..  236;  Melton  v.  U.  S.,  120  Fed. 
Rep.,  504;  U.  S.  v.  Clark,  121  Fed.  Rep., 
190;  U.  S.  v.  Ryan,  123  Fed.  Rep.,  634; 
Hawley  v.  U.  S.,  123  Fed.  Rep.,  849; 
Kellogg  v.  U.  S.,  126  Fed.  Rep.,  323; 
Dalton  v.  U.  S.,  127  Fed.  Rep.,  534; 
Flachskamm  v.  U.  S.,  127  Fed.  Rep.. 
674;  Hawley  v.  U.  S.,  127  Fed.  Rep., 
929;  U.  S.  v.  Post,  128  Fed.  Rep.,  950; 
O'Hara  v.  U.  S.,  129  Fed.  Rep.,  551: 
Balliet  v.  U.  S.,  129  Fed.  Rep.,  689; 
Betts  v.  U.  S.,  132  Fed.  Rep.,  228;  Mc- 
Donnell v.  U.  S.,  133  Fed.  Rep.,  293; 
Miller  v.  U.  S.,  133  Fed.  Rep.,  337; 
Post  v.  U.  S.,  135  Fed.  Rep.,  1;  Ewing 
v.  U.  S.,  136  Fed.  Rep.,  53;  Booth  v. 
U.  S.,  139  Fed.  Rep.,  252;  U.  S.  v. 
Etheredge,  140  Fed.  Rep.,  376;  Brown 
v.  U.  S.,  143  Fed.  Rep.,  60;  Runble  v. 
U.  S.,  143  Fed.  Rep.,  772;  U.  S.  v. 
Francis,  144  Fed.  Rep.,  520;  Brown  v. 
U.  S.,  146  Fed.  Rep.,  219;  Brooks  v. 
U.  S.,  146  Fed.  Rep.,  223;  U.  S.  v. 
White,  150  Fed.  Rep.,  379;  Van  Deusen 
v.  U.  S..  151  Fed.  Rep.,  989;  Walker  v. 
U.  S.,  152  Fed.  Rep.,  Ill;  Francis  v. 
U.  S..  152  Fed.  Rep.,  155;  Hall  v.  U. 
S.,  152  Fed.  Rep.,  420;  Gourdain  v. 
U.  S.,  154  U.  S.,  453;  Dalton  v.  U. 
S.,  154  Fed.  Rep.,  461;  Booth  v.  U.  S., 
154  Fed.  Rep.,  836;  U.  S..  v.  Dexter, 
154  Fed.  Rep.,  890;  Faulkner  v.  U. 
S.,    157   Fed.   Rep.,   840;    U.    S.   v.   Raish, 

163  Fed.    Rep.,    911;    U.    S.    v.    McVicker, 

164  Fed.  Rep.,  894;  Lemon  v.  U.  S.. 
164  Fed.  Rep.,  953;  U.  S.  v.  Smith,  166 
Fed.  Rep.,  958;  U.  S.  v.  McCrory,  175 
Fed.    Rep.,    802. 


§  216.  Fraudulently  assuming  fictitious  address. — 
Whoever,  for  Ihe  purpose  of  conducting,  promoting,  or 
carrying  on,  in  any  manner,  by  means  of  the  post-office 
establishment  of  the  United  States  any  scheme  or  device 
mentioned  in  the  section  last  preceding,  or  any  other  un- 
lawful business  whatsoever,  shall  use  or  assume,  or  re- 
quest to  be  addressed  by,  any  fictitious,  false,  or  assumed 


Offenses  Against  the  Postal  Service.  851 

title,  name  or  address,  or  name  other  than  his  own  prop- 
er name,  or  shall  take  or  receive  from  any  post-office  of 
the  United  States,  or  station  thereof,  or  any  other  au- 
thorized depository  of  mail  matter,  any  letter,  postal 
card,  package,  or  other  mail  matter  addressed  to  any  such 
fictitious,  false,  or  assumed  title,  name,  or  address  or 
name  other  than  his  own  proper  name,  shall  be  punished 
as  provided  in  the  section  last  preceding.  (2  Mar.,  1889, 
25  Stat.  L.,  873,  c.  393,  s.  2;  1  Supp.,  695.) 

§  217.  Poisons  and  explosives  nonmailable. — All  kinds 
of  poison,  and  all  articles  and  compositions  containing 
poison,  and  all  poisonous  animals,  insects,  and  reptiles, 
and  explositives  of  all  kinds,  and  imnammable  materials, 
and  infernal  machines,  and  machanical,  chemical,  or 
other  devices  or  compositions  which  may  ignite  or  ex- 
plode, and  all  disease  germs  or  scabs,  and  all  other 
natural  or  artificial  articles,  compositions,  or  materials 
of  whatever  kind  which  may  kill,  or  in  anywise  hurt, 
harm,  or  injure  another,  or  damage,  deface,  or  other- 
wise injure  the  mails  or  other  property,  whether  sealed 
as  first-class  matter  or  not,  are  hereby  declared  to  be 
non-mailable  matter,  and  shall  not  be  conveyed  in 
the  mails  or  delivered  from  any  post-office  or  station 
thereof,  ror  by  any  letter  carrier;  but  the  Postmaster- 
General  may  pemit  the  transmission  in  the  mails,  under 
such  rules  and  regulations  as  he  shall  prescribe  as  to 
preparation  and  packing,  of  any  articles  hereinbefore  de- 
scribed which  are  not  outwardly  or  of  their  own  force  dan- 
gerous or  injurious  to  life,  health  or  property:  Provided, 
That  all  spirituous,  yinous,  malted,  fermented,  or  other 
intoxicating  liquors  of  any  kind,  are  hereby  declared  to 
be  non-mailable  and  shall  not  be  deposited  in  or  carried 
through  the  mails.  Whoever  shall  knowingly  deposit  or 
cause  to  be  deposited  for  mailing  or  delivery,  or  shall 
knowingly  cause  to  be  delivered  by  mail  according  to  the 
direction  thereon,  or  at  any  place  at  which  it  is  directed 
to  be  delivered  by  the  person  to  whom  it  is  addressed,  any- 
thing declared  by  this  section  to  be  non-mailable,  unless 
in  accordance  with  the  rules  and  regulations  hereby  au- 
thorized to  be  prescribed  by  the  Postmaster-General,  shall 
be  fined  not  more  than  one  thousand  dollars,  or  impris- 


852  Federal  Criminal  Law  Procedure. 

oned  not  more  than  two  years,  or  both ;  and  whoever  shall 
knowingly  deposit  or  cause  to  be  deposited  for  mailing  or 
delivery,  or  shall  knowingly  cause  to  be  delivered  by  mail 
according  to  the  directions  thereon,  or  at  any  place  to 
which  it  is  directed  to  be  delivered  by  the  person  to  whom 
it  is  addressed,  anything  declared  by  this  section  to  be 
non-mailable,  whether  transmitted  in  accordance  with  the 
rules  and  regulations  authorized  to  be  prescribed  by  the 
Postmaster-General  or  not,  with  the  design,  intent,  or 
purpose  to  kill,  or  in  anywise  hurt,  harm,  or  injure  an- 
other or  damage,  deface,  or  otherwise  injure  the  mails  or 
other  property,  shall  be  fined  not  more  than  five  thou- 
sand dollars,  or  imprisoned  not  more  than  ten  years,  or 
both.  (E.  S.,  s.  3878.  3  Mar.,  1879,  20  Stat.  L.,  360,  c. 
180,  s.  20;  1  Supp.  247.  8  June,  1896,  29  Stat.  L.,  262,  c. 
370;  2  Supp.,  507.) 

§  218.  Counterfeiting  money  orders. — Whoever,  with 
intent  to  defraud,  shall  falsely  make,  forge,  counterfeit, 
engrave,  or  print,  or  cause  or  procure  to  be  falsely  made, 
forged,  counterfeited,  engraved,  or  printed  or  shall  will- 
ingly aid  or  assist  in  falsely  making,  forging,  counter- 
feiting, engraving,  or  printing,  any  order  in  imitation  of 
or  purporting  to  be  a  money  order  issued  by  the  Post- 
Office  Department  or  by  any  postmaster  or  agent  thereof; 
or  whoever  shall  forge  or  counterfeit  the  signature  of  any 
postmaster,  assistant  postmaster,  chief  clerk,  or  clerk, 
upon  or  to  any  money  order,  or  postal  note,  or  blank 
therefor  provided  or  issued  by  or  under  the  direction  of 
the  Post-Office  Department  of  the  United  States,  or  of 
any  foreign  country,  and  payable  in  the  United  States, 
or  any  material  signature  or  indorsement  thereon, 
or  any  material  signature  to  any  receipt  or  certifi- 
cate  of  identification  thereon;  or  shall  falsely  alter, 
or  cause  or  procure  to  be  falsely  altered  in  any  ma- 
terial respect,  or  knowingly  aid  or  assist  in  falsely  so 
altering  any  such  money  order  or  postal  note;  or  shall, 
with  intent  to  defraud,  pass,  utter,  or  publish  any  such 
forged  or  altered  money  order  or  postal  note,  knowing 
any  material  signature  or  indorsement  thereon  to  be 
false,  forged,  or  counterfeited,  or  any  material  altera- 
tion therein  to  have  been  falsely  made;  or  shall  issue  any 


Offenses  Against  the  Postal  Service.  85 


o 


money  order  or  postal  note  without  having  previously 
received  or  paid  the  full  amount  of  money  payable  there- 
for with  the  purpose  of  fraudulently  obtaining,  or  re- 
ceiving or  fraudulently  enabling  any  other  person,  either 
directly  or  indirectly,  to  obtain  or  receive  from  the  Unit- 
ed States,  or  any  officer,  employee,  or  agent  thereof,  any 
sum  of  money  whatever;  or  shall,  with  intent  to  defraud 
the  United  States,  or  any  person,  transmit  or  present  to, 
or  cause  or  procure  to  be  transmitted  or  presented  to,  any 
officer  or  employee  or  at  any  office  of  the  Government  of 
the  United  States,  any  money  order  or  postal  note,  know- 
ing the  same  to  contain  any  forged  or  counterfeited  sig- 
nature to  the  same,  or  to  any  material  indorsement,  re- 
ceipt, or  certificate  thereon,  or  material  alteration  there- 
in unlawfully  made,  or  to  have  been  unlawfully  issued 
without  previous  payment  of  the  amount  required  to  be 
paid  upon  such  issue,  shall  be  fined  not  more  than  five 
thousand  dollars,  or  imprisoned  not  more  than  five  years, 
or  both.  (R.  S.,  s.  5463.  3  Jan.,  1887,  24  Stat.  L.,  355,  c. 
13,  s.  2;  1  Supp.,  518.  18  June,  1888,  25  Stat.  L.,  187,  c. 
394,  s.  2;  1  Supp.,  593.) 

U.  S.  v.  Morris,  16  Blatch.,  133,  26  678;  Woodruff  v.  U.  S.,  58  Fed.  Rep.. 
Fed.  Cas.,  1321;  Ex  parte  Hibbs,  26  Fed.  766;  Vives  v.  U.  S.,  92  Fed.  Rep.,  355. 
Rep.,  421;   U.   S.  v.  Long,  30  Fed.  Rep.. 

§  219.  Counterfeiting  postage  stamps.  —  Whoever 
shall  forge  or  counterfeit  any  postage  stamp,  or  any 
stamp  printed  upon  any  stamped  envelope,  or  postal  card, 
or  any  die,  plate,  or  engraving  therefor ;  or  shall  make  or 
print,  or  knowingly  use  or  sell,  or  have  in  possession  with 
intent  to  use  or  sell,  any  such  forged  or  counterfeited 
postage  stamp,  stamped  envelope,  postal  card,  die,  plate, 
or  engraving;  or  shall  make,  or  knowingly  use  or  sell,  or 
have  in  possession  with  intent  to  use  or  sell,  any  paper 
bearing  the  watermark  of  any  stamped  envelope,  or  pos- 
tal card,  or  any  fraudulent  imitation  thereof;  or  shall 
make  or  print,  or  authorize  or  procure  to  be  made  or 
printed,  any  postage  stamp,  stamped  envelope,  or  postal 
card,  of  the  kind  authorized  and  provided  by  the  Post- 
Office  Department,  without  the  special  authority  and  di- 
rection of  said  Department;  or  shall,  after  such  postage 
stamp,  stamped  envelope,  or  postal  card  has  been  print- 
ed, with  intent  to  defraud,  deliver  the  same  to  any  per- 


854  Federal  Criminal  Law  Procedure. 

son  not  authorized  by  an  instrument  in  writing,  duly  exe- 
cuted under  the  hand  of  the  Postmaster-General  and  the 
seal  of  the  Post-Office  Department,  to  receive  it,  shall  be 
fined  not  more  than  five  hundred  dollars,  or  imprisoned 
not  more  than  five  years,  or  both.     (R.  S.,  s.  5464.) 

I'.  S.  v.  Rellecreau,  14  Blatch.,  126, 
21  Fed.  Cas.,  126;  U.  S.  v.  Copper- 
smith,   4    Fed.    Rep.,    198. 

§  220.  Counterfeiting,  etc.,  foreign  stamps. — Who 
ever  shall  forge,  or  counterfeit,  or  knowingly  utter  or 
use  any  forged  or  counterfeited  postage  stamp  of  any 
foreign  government,  shall  be  fined  not  more  than  five 
hundred  dollars,  or  imprisoned  not  more  than  five  years, 
or  both.    (R.  S.,  s.  5465.) 

§  221.  Inclosing  higher-class  in  lower-class  matter. — 
Matter  of  the  second,  third,  or  fourth  class  containing 
any  writing  or  printing  in  addition  to  the  original  matter, 
other  than  as  authorized  by  law,  shall  not  be  admitted  to 
the  mails,  nor  delivered,  except  upon  payment  of  postage 
for  matter  of  the  first  class,  deducting  therefrom  any  a- 
mount  which  may  have  been  prepaid  by  stamps  affixed, 
unless  by  direction  of  the  Postmaster-General  such  post- 
age shall  be  remitted.  Whoever  shall  knowingly  conceal  or 
inclose  any  matter  of  a  higher  class  in  that  of  a  lower 
class,  and  deposit  or  cause  the  same  to  be  deposited  for 
conveyance  by  mail,  at  a  less  rate  than  would  be  charged 
for  such  higher  class  matter,  shall  be  fined  not  more  than 
one  hundred  dollars.  (R.  S.,  s.  3887.  20  Jan.,  1888,  25 
Stat.  L.,  2  c.  —  s.  2;  1  Supp.,  578.) 

§  222.  Postmaster  illegally  approving  bond,  etc. — 
Whoever,  being  a  postmaster,  shall  affix  his  signature  to 
the  approval  of  any  bond  of  a  bidder,  or  to  the  certifi- 
cate of  sufficiency  of  sureties  in  any  contract,  before  the 
said  bond  or  contract  is  signed  by  the  bidder  or  contract- 
or and  his  sureties,  or  shall  knowingly,  or  without  the 
exercise  of  due  diligence,  approve  any  bond  of  a  bidder 
with  insufficient  sureties  or  shall  knowingly  make  any 
false  or  fraudulent  certificate,  shall  be  forthwith  dis- 
missed from  office  and  be  thereafter  disqualified  from 
holding  the  office  of  postmaster;  and  shall  also  be  fined 
not  more  than  five  thousand  dollars,  or  imprisoned  not 
more  than  one  year,  or  both.  (R.  S.,  s.  3947.  23  June, 
1874,  18  Slat.  L.  235,  c.  456,  s.  12;  1  Supp.,  45.) 


Offenses  Against  the  Postal  Service.  855 

§  223.  False  evidence  as  to  second-class  matter. — 
Whoever  shall  submit  or  cause  to  be  submitted  to  any 
postmaster  or  to  the  Post-Office  Department  or  any  of- 
ficer of  the  postal  service,  any  false  evidence  relative  to 
any  publication  for  the  purpose  of  securing  the  admis- 
sion thereof  at  the  second-class  rate,  for  transportation 
in  the  mails,  shall  be  fined  not  more  than  five  hundred 
dollars.  (18  June,  1888,  25  Stat.  L.,  187,  c.  394,  s.  1;  1 
Supp.,  593.    2  Mar.,  1905,  33  Stat.  L.,  823,  c.  1304.) 

§  224.  Inducing  or  prosecuting  false  claims. — Who- 
ever shall  make,  allege,  or  present,  or  cause  to  be  made, 
alleged,  or  presented,  or  assist,  aid,  or  abet  in  making, 
alleging,  or  presenting,  any  claim  or  application  for  in- 
demnity for  the  loss  of  any  registered  letter,  parcel,  pack- 
age, or  other  article  or  matter,  or  the  contents  thereof, 
knowing  such  claim  or  application  to  be  false,  fictitious, 
or  fraudulent;  or  whoever  for  the  purpose  of  obtaining 
or  aiding  to  obtain  the  payment  or  approval  of  any  such 
claim  or  application,  shall  make  or  use,  or  cause  to  be 
made  or  used,  any  false  statement,  certificate,  affidavit, 
or  deposition;  or  whoever  shall  knowingly  and  willfully 
misrepresent,  or  mis-state,  or,  for  the  purpose  aforesaid 
shall  knowingly  and  willfully  conceal  any  material  fact 
or  circumstance  in  respect  of  any  such  claim  or  applica- 
tion for  indemnity,  shall  be  fined  not  more  than  five  hun- 
dred dollars,  or  imprisoned  not  more  than  one  year,  or 
both. 

§  225.  Misappropriation  of  postal  funds  or  property. 
— Whoever,  being  a  postmaster  or  other  person  employed 
in  or  connected  with  any  branch  of  the  postal  service 
shall  loan,  use,  pledge,  hypothecate,  or  convert  to  his  own 
use,  or  shall  deposit  in  any  bank,  or  exchange  for  other 
funds  or  property,  except  as  authorized  by  law,  any 
money  or  property  coming  into  his  hands  or  under  his 
control  in  any  manner  whatever,  in  the  execution  or  un- 
der  color  of  his  office,  employment,  or  service,  whether 
the  same  shall  be  the  money  or  property  of  the  United 
States  or  not;  or  shall  fail  or  refuse  to  remit  to  or  de- 
posit in  the  Treasury  of  the  United  States  or  in  a  desig- 
nated depository,  or  to  account  for  or  turn  over  to  the 
proper  officer  or  agent,  any  such  money  or  property,  when 


856  Federal  Criminal  Law  Procedure. 

required  so  to  do  by  law  or  the  regulations  of  the  Post- 
Office  Department,  or  upon  demand  or  order  of  the  Post- 
master-General, either  directly  or  through  a  duly  author- 
ized officer  or  agent,  shall  be  deemed  guilty  of  embezzle- 
ment; and  every  such  person,  as  well  as  every  other  per- 
son advising  or  knowingly  participating  therein,  shall  be 
fined  in  a  sum  equal  to  the  amount  or  value  of  the  money 
or  property  embezzled,  or  imprisoned  not  more  than  ten 
years,  or  both.  Any  failure  to  produce  or  to  pay  over 
any  such  money  or  property,  when  required  so  to  do  as 
above  provided,  shall  be  taken  to  be  prima  facie  evidence 
of  such  embezzlement;  and  upon  the  trial  of  any  indict- 
ment against  any  person  for  such  embezzlement,  it  shall 
be  prima  facie  evidence  of  a  balance  against  him  to  pro- 
duce a  transcript  from  the  account  books  of  the  Auditor 
for  the  Post-Office  Department.  But  nothing  herein  shall 
be  construed  to  prohibit  any  postmaster  depositing,  un- 
der the  direction  of  the  Postmaster-General,  in  a  nation- 
al bank  designated  by  the  Secretary  of  the  Treasury  for 
that  purpose,  to  his  own  credit  as  postmaster,  any  funds 
in  his  charge  nor  prevent  his  negotiating  drafts  or  other 
evidences  of  debt  through  such  bank  or  through  United 
States  disbursing  officers  or  otherwise  when  instructed  or 
required  so  to  do  by  the  Postmaster-General  for  the  pur- 
pose of  remitting  surplus  funds  from  one  post-office  to 
another.     (R.  S.,  ss.  4046,  4053.) 

U.   S.  v.   Young,  25    Fed.   Rep.,   710. 
U.    S.   v.    Royer,    122    Fed.    Rep.,    844; 
U.    S.   v.   Mann,    160   Fed.   Rep.,    552. 

§  226.  Employees  not  to  become  interested  in  con- 
tracts.— Whoever,  being  a  person  employed  in  the  postal 
service,  shall  become  interested  in  any  contract  for  carry- 
ing the  mail,  or  act  as  agent,  with  or  without  compensa- 
tion, for  any  contractor  or  person  offering  to  become  a 
contractor  in  any  business  before  the  Department,  shall 
be  immediately  dismissed  from  office,  and  shall  be  fined 
not  more  than  five  thousand  dollars,  or  imprisoned  not 
more  than  0110  year,  or  both.     (R.  S.,  s.  412.) 

227.  Fraudulent  use  of  official  envelopes. — Who- 
ever  shall  make  use  of  any  official  envelope,  label,  or  in- 
dorsemenl  authorized  by  law,  to  avoid  the  payment  of 
postage  <>r  registry  fee  on  his  private  letter,  packet,  pack- 


Offenses  Against  the  Postal.  Service.  857 

age,  or  other  matter  in  the  mail,  shall  be  fined  not  more 
than  three  hundred  dollars.  (3  Mar.,  1877,  19  Stat.  L., 
335,  c.  103,  s.  5;  1  Supp.,  135.  3  Mar.,  1879,  20  Stat.  L., 
362,  c.  180,  s.  29.  5  July  1884,  23  Stat.  L.,  158,  c.  234,  s. 
3;  1  Supp.,  467.  2  July  1886,  24  Stat.  L.,  1122,  c.  611; 
Supp.,  500.) 

§  228.  Fraudulent  increase  of  weight  of  mail. — Who- 
ever shall  place  or  cause  to  be  placed  any  matter  in  the 
mails  during  the  regular  weighing  period,  for  the  pur- 
pose of  increasing  the  weight  of  the  mail  with  intent  to 
cause  an  increase  in  the  compensation  of  the  railroad 
mail  carrier  over  whose  route  such  mail  may  pass,  shall 
be  fined  not  more  than  twenty  thousand  dollars,  or  im- 
prisoned not  more  than  five  years,  or  both.  (13  June 
1898,  30  Stat.  L.,  442,  c.  446,  s.  1;  2  Supp.,  778.) 

§  229.  Offenses  against  foreign  mail  in  transit.— 
Every  foreign  mail  shall,  while  being  transported  across 
the  territory  of  the  United  States,  under  authority  of 
law,  be  taken  and  deemed  to  be  a  mail  of  the  United 
States  so  far  as  to  make  any  violation  thereof,  or  depre- 
dation thereon,  or  offense  in  respect  thereto,  or  any  part 
thereof,  an  offense  of  the  same  grade,  and  punishable  in 
the  same  manner  and  to  the  same  extent  as  though  the 
mail  was  a  mail  of  the  United  States;  and  in  any  indict- 
ment or  information  for  any  such  offense,  the  mail,  or 
any  part  thereof,  may  be  alleged  to  be,  and  on  the  trial  of 
any  such  indictment  or  information  it  shall  be  deemed 
and  held  to  be,  a  mail  or  part  of  a  mail  of  the  United 
States.     (R.  S.,  s.  4013.) 

§  230.  Omission  to  take  oath. — Every  person  employ- 
ed in  the  postal  service  shall  be  subject  to  all  penalties 
and  forfeitures  for  the  violation  of  the  laws  relating  to 
such  service,  whether  he  has  taken  the  oath  of  office  or 
not.    (E.  S.,  s.  3832.) 

§  231.  Definitions. — The  words  "postal  service,'1 
wherever  used  in  this  chapter,  shall  be  held  and  deemed 
to  include  the  "Post-Office  Department." 


CHAPTEE       NINE. 

OFFENSES   AGAINST    FOREIGN    AND    INTERSTATE    COMMERCE. 

§  232.     Dynamite,  etc.,  not  to  be  carried  on  vessels  or  vehicles  carry- 
ing passengers  for  hire. 

233.  Interstate    Commerce    Commission    to    make    regulations    for 

transportation  of  explosives. 

234.  Liquid  nitroglycerin,  etc.,  not  to  be  carried  on  certain  vessels 

and  vehicles. 
.     235.     Marking  of  packages   of   explosives;    deceptive   marking. 

236.  Death  or  bodily  injury  caused  by  such  transportation. 

237.  Importation    and    transportation    of    lottery    tickets,    etc.,    for- 

bidden. 

238.  Interstate  shipment  of  intoxicating  liquors;    delivery  of  to  be 

made  only  to  bona  fide  consignee. 

239.  Common   carrier,   etc.,   not  to  collect  purchase  price   of   inter- 

state  shipment   of   intoxicating  liquors. 

240.  Packages    containing    intoxicating    liquors    shipped    in    inter- 

state commerce  to  be  marked  as  such. 

241.  Importation  of  certain  wild  animals  and  birds  forbidden. 

242.  Transportation  of  prohibited  animals. 

243.  Marking  of  packages. 

244.  Penalty  for  violation  of  three  preceding  sections. 

245.  Importation  and  transportation  of  obscene,  etc.,  books,  etc. 

§  232.  Dynamite,  etc.,  not  to  be  carried  on  vessels  or 
vehicles  carrying  passengers,  for  hire. — It  shall  be  unlaw- 
ful to  transport,  carry,  or  convey,  any  dynamite,  gun- 
powder, or  other  explosive,  between  a  place  in  a  foreign 
country  and  a  place  within  or  subject  to  the  jurisdiction 
of  the  United  States,  or  between  a  place  in  any  State, 
Territory  or  District  of  the  United  States,  or  place  non- 
contiguous to  but  subject  to  the  jurisdiction  thereof,  and 
a  place  in  any  other  State,  Territory,  or  District  of  the 
United  States,  or  place  noncontiguous  to  but  subject  to 
the  jurisdiction  thereof,  on  any  vessel  or  vehicle  of  any 
description  operated  by  a  common  carrier,  which  vessel 
or  vehicle  is  carrying  passengers  for  hire:  Provided,  That 
it  shall  be  lawful  to  transport  on  any  such  vessel  or  vehic- 
le small  arms  ammunition  in  any  quantity,  and  such  fuses, 
torpedoes,  rockets,  or  other  signal  devices,  as  may  be  es- 
ential  to  promote  safety  in  operation,  and  properly  packed 
and  marked  samples  of  explosives  for  laboratory  exami- 

(858) 


Offenses  Against  Foreign  and  Interstate  Com  850 

nation,  not  exceeding  a  net  weight  of  one  half  pound  each, 
and  not  exceeding  twenty  samples  at  one  time  in  a  single 
vessel  or  vehicle;  but  such  samples  not  to  be  carried  in 
that  part  of  a  vessel  or  vehicle  which  is  intended  for 
the  transportation  of  passengers  for  hire ;  Provided,  fur- 
ther, That  nothing  in  this  section  shall  be  construed  to 
prevent  the  transportation  of  military  or  naval  forces 
with  their  accompanying  munitions  of  war  on  passenger 
equipment  vessels  or  vehicles.  (R.  S.,  ss.  4278,  5353.  30 
May,  1908,  35  Stat.  L.,  554,  c.  234,  s.  1.) 

§  233.  Interstate  Commerce  Commission  to  make 
regulations  for  transportation  of  explosives. — The  Inter- 
state Commerce  Commission  shall  formulate  regulations 
for  the  safe  transportation  of  explosives,  which  shall  be 
binding  upon  all  common  carriers  engaged  in  interstate 
or  foreign  commerce  which  transport  explosives  by  land. 
Said  commission,  of  its  own  motion,  or  upon  application 
made  by  any  interested  party,  may  make  changes  or 
modifications  in  such  regulations,  made  desirable  by  new 
information  or  altered  conditions.  Such  regulations  shall 
be  in  accord  with  the  best  known  practicable  means  for 
securing  safety  in  transit,  covering  the  packing,  mark- 
ing, loading,  handling  while  in  transit,  and  the  precau- 
tions necessary  to  determine  whether  the  material  when 
offered  is  in  proper  condition  to  transport.  Such  regula- 
tions, as  well  as  all  changes  or  modifications  thereof, 
shall  take  effect  ninety  days  after  their  formulation  and 
publication  by  said  commission  and  shall  be  in  effect  un- 
til reversed,  set  aside,  or  modified.  (R.  S.,  ss.  4279,  5355. 
30  May,  1908,  35  Stat.  L.,  555  c.  234,  s.  2.) 

§  234.  Liquid  nitroglycerin,  etc.,  not  to  be  carried  on 
certain  vessels  and  vehicles. — It  shall  be  unlawful  to 
transport,  carry,  or  convey  liquid  nitroglycerin,  fulmi- 
nate in  bulk  in  dry  condition,  or  other  like  explosive,  be- 
tween a  place  in  a  foreign  country  and  a  place  within  or 
subject  to  the  jurisdiction  of  the  United  States,  or  be- 
tween a  place  in  one  State,  Territory,  or  District  of  the 
United  States,  or  place  noncontiguous  to  but  subject  to 
the  jurisdiction  thereof,  and  a  place  in  any  other  State, 
Territory,  or  District  of  the  United  States,  or  place  non- 
contiguous to  but  subject  to  the  jurisdiction  thereof,  on 


860  Federal  Criminal  Law  Procedure. 

any  vessel  or  vehicle  of  any  description  operated  by  a 
common  carrier  in  the  transportation  of  passengers  or 
articles  of  commerce  by  land  or  water.  (30  May,  1908, 
35  Stat.  L.,  555,  c,  234,  s.  3.) 

§  235.  Marking  of  packages  of  explosives;  deceptive 
marking'. — Every  package  containing  explosives  or  other 
dangerous  articles  when  presented  to  a  common  carrier 
for  shipment  shall  have  plainly  marked  on  the  outside 
thereof  the  contents  thereof;  and  it  shall  be  unlawful  for 
any  person  to  deliver,  or  cause  to  be  delivered,  to  any 
common  carrier  engaged  in  interstate  or  foreign  com- 
merce by  land  or  water,  for  interstate  or  foreign  trans- 
portation, or  to  carry  upon  any  vessel  or  vehicle  engaged 
in  interstate  or  foreign  transportation,  any  explosive,  or 
other  dangerous  article,  under  any  false  or  deceptive 
marking,  description,  invoice,  shipping  order,  or  other 
declaration,  or  without  informing  the  agent  of  such  car- 
rier of  the  true  character  thereof,  at  or  before  the  time 
such  delivery  or  carriage  is  made.  Whoever  shall  know- 
ingly violate,  or  cause  to  be  violated,  any  provision  of 
this  section,  or  of  the  three  sections  last  preceding,  or 
any  regulation  made  by  the  Interstate  Commerce  Com- 
mission in  pursuance  thereof,  shall  be  fined  not  more  than 
two  thousand  dollars,  or  imprisoned  not  more  than  eigh- 
teen months,  or  both.  (30  May,  1908,  35  Stat.  L.,  555,  c. 
234,  ss.  4,  5.) 

§  236.  Death  or  bodily  injury  caused  by  such  trans- 
portation.— When  the  death  or  bodily  injury  of  any  per- 
son is  caused  by  the  explosion  of  any  article  named  in 
the  four  sections  last  preceding  while  the  same  is  being- 
placed  upon  any  vessel  or  vehicle  to  be  transported  in 
violation  thereof,  or  while  the  same  is  being  so  trans- 
ported, or  while  the  same  is  being  removed  from  such 
vessel  or  vehicle,  the  person  knowingly  placing,  or  aid- 
ing or  permitting  the  placing,  of  such  articles  upon  any 
such  vessel  or  vehicle,  to  be  so  transported,  shall  be  im- 
prisoned not  more  than  ten  years,     (R.  S.,  s.  5354.) 

237.  Importation  and  transportation  of  lottery  tick- 
ets, etc. — Whoever  shall  bring  or  cause  to  be  brought  in- 
to the  United  Stales  or  any  place  subject  to  the  jurisdic- 
tion thereof,  from  any  foreign  country,  for  the  purpose 


Offenses  Against  Foreign  and  Interstate  Com.  861. 

of  disposing  of  the  same,  any  paper,  certificate,  or  in- 
strument purporting  to  be  or  to  represent  a  ticket, 
chance,  share,  or  interest  in  or  dependent  upon  the  event 
of  a  lottery,  gift  enterprise,  or  similar  scheme,  offering 
jDrizes  dependent  in  whole  or  in  part  upon  lot  or  chance, 
or  any  advertisement  of,  or  list  of  the  prizes  drawn  or 
awarded  by  means  of,  any  such  lottery,  gift  enterprise, 
or  similar  scheme;  or  shall  therein  knowingly  deposit  or 
cause  to  be  deposited  with  any  express  company  or  other 
common  carrier  for  carriage,  or  shall  carry,  from  one 
State,  Territory,  or  District  of  the  United  States,  or  place 
noncontiguous  to  but  subject  to  the  jurisdiction  thereof, 
to  any  other  State,  Territory,  or  District  of  the  United 
States,  or  place  noncontiguous  to  but  subject  to  the  juris- 
diction thereof,  or  from  any  place  in  or  subject  to  the 
jurisdiction  of  the  United  States  through  a  foreign  coun- 
try to  any  place  in  or  subject  to  the  jurisdiction  thereof 
or  from  any  place  in  or  subject  to  the  jurisdiction  of  the 
United  States  to  a  foreign  country,  any  paper,  certificate, 
or  instrument  purporting  to  be  or  to  represent  a  ticket, 
chance,  share,  or  interest  in  or  dependent  upon,  the  event 
of  any  such  lottery,  gift  enterprise,  or  similar  scheme, 
or  any  advertisement  of,  or  list  of  the  prizes  drawn  or 
awarded  by  means  of,  any  such  lottery,  gift  enterprise, 
or  similar  scheme,  or  shall  knowingly  take  or  receive, 
or  cause  to  be  taken  or  received,  any  such  paper,  certifi- 
cate, instrument,  advertisement,  or  list  so  brought,  de- 
posited, or  transported,  shall,  for  the  first  offense  be  fined 
not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  two  years,  or  both;  and  for  any  subsequent  of- 
fense shall.be  imprisoned  not  more  than  two  years.  (2 
Mar.,  1895,  28  Stat.  L.,  963,  c.  191,  s.  1;  2  Supp.,  435.) 

France    v.    U.     S.,     164    U.     S.,     676;        S.    v.    Ames,    95    Fed.    Rep.,    453;    U.    S. 
Champion    v.     Ames,     188     U.     S.,     321;        v.    Whelpley,    125    Fed.    Rep.,    616. 
Francis    v.    U.    S.,    188    U.    S.,    375;    U. 

§  238.  Interstate  shipment  of  intoxicating  liquors; 
delivery  of  to  be  made  only  to  bona  fide  consignee. — Any 
officer,  agent,  or  employee  of  any  railroad  company,  ex- 
press company,  or  other  common  carrier,  who  shall  know- 
ingly deliver  or  cause  to  be  delivered  to  any  person  other 
than  the  person  to  whom  it  has  been  consigned,  unless 
upon  the  written  order  in  each  instance  of  the  bona  fide 


862  Federal  Criminal  Law  Procedure. 

consignee,  or  any  fictitous  person,  or  to  any  person  under 
a  fictitous  name,  any  spirituous,  vinous,  malted,  fer- 
mented, or  other  intoxicating  liquor  of  any  kind  which 
has  been  shipped  from  one  State,  Territory,  or  District 
of  the  United  States,  or  place  noncontiguous  to  but  sub- 
ject to  the  jurisdiction  thereof,  into  any  other  State,  Ter- 
ritory, or  District  of  the  United  States,  or  place  noncon- 
tiguous to  but  subject  to  the  jurisdiction  thereof,  or  from 
any  foreign  country  into  any  State,  Territory,  or  Dis- 
trict of  the  United  States,  or  place  noncontiguous  to  but 
subject  to  the  jurisdiction  thereof,  shall  be  fined  not  more 
than  five  thousand  dollars,  or  imprisoned  not  more  than 
two  years,  or  both. 

§  239.  Common  carrier,  etc.,  not  to  collect  purchase 
price  of  interstate  shipment  of  intoxicating  liquors. — Any 
railroad  company,  express  company,  or  other  common 
carrier,  or  any  other  person  who,  in  connection  with  the 
transportation  of  any  spirituous,  vinous,  malted,  ferment- 
ed, or  other  intoxicating  liquor  of  any  kind,  from  one 
State,  Territory,  or  District  of  the  United  States,  or  place 
noncontiguous  to  but  subject  to  the  jurisdiction  thereof, 
into  any  other  State,  Territory,  or  District  of  the  United 
States,  or  place  noncontiguous  to  but  subject  to  the  ju- 
risdiction thereof,  or  from  any  foreign  country  into  any 
State,  Territory,  or  District  of  the  United  States,  or  place 
noncontiguous  to  but  subject  to  the  jurisdiction  thereof, 
shall  collect  the  purchase  price  or  any  part  thereof,  be- 
fore, on,  or  after  delivery,  from  the  consignee,  or  from 
any  other  fjerson,  or  shall  in  any  manner  act  as  the  agent 
of  the  buyer  or  seller  of  any  such  liquor,  for  the  purpose 
of  buying  or  selling  or  completing  the  sale  thereof,  sav- 
ing only  in  the  actual  transportation  and  delivery  of  the 
same,  shall  be  fined  not  more  than  five  thousand  dollars. 

§  240.  Packages  containing  intoxicating  liquors 
shipped  in  interstate  commerce  to  be  marked  as  such. — 
Whoever  shall  knowingly  ship  or  cause  to  be  shipped, 
from  one  Stale,  Territory,  or  District  of  the  United 
Stales,  or  place  noncontiguous  to  but  subject  to  the  ju- 
risdiction thereof,  into  any  other  State,  Territory,  or  Dis- 
trict of  the  I'nitc.l  States,  or  place  noncontiguous  to  but 
subjeel  tn  the  jurisdiction  thereof,  or  from  any  foreign 


Offenses  Against  Foreign  and  Interstate  Com.  863 

country  into  any  State,  Territory,  or  District  of  the  Unit- 
ed States,  or  place  noncontiguous  to  but  subject  to  the 
jurisdiction  thereof,  any  package  of  or  package  contain- 
ing any  spirituous,  vinous,  malted,  fermented,  or  other 
intoxicating  liquor  of  any  kind,  unless  such  package  be 
so  labeled  on  the  outside  cover  as  to  plainly  show  the 
name  of  the  consignee,  the  nature  of  its  contents,  and 
the  quantity  contained  therein,  shall  be  fined  not  more 
than  five  thousand  dollars ;  and  such  liquor  shall  be  for- 
feited to  the  United  States,  and  may  be  seized  and  con- 
demned by  like  proceedings  as  those  provided  by  law  for 
the  seizure  and  forfeiture  of  property  imported  into  the 
United  States  contrary  to  law. 

§  241.  Importation  of  certain  wild  animals,  birds,  and 
reptiles  forbidden. — The  importation  into  the  United 
States,  or  any  Territory  or  District  thereof,  of  the  mon- 
goose, the  so-called  "flying  foxes"  or  fruit  bats,  the  Eng- 
lish sparrow,  the  starling,  and  such  other  birds  and  ani- 
mals as  the  Secretary  of  Agriculture  may  from  time  to 
time  declare  to  be  injurious  to  the  interests  of  agricul- 
ture or  horticulture,  is  here  prohibited;  and  all  such  birds 
and  animals  shall,  upon  arrival  at  any  port  of  the  United 
States,  be  destroyed  or  returned  at  the  expense  of  the 
owner.  No  person  shall  import  into  the  United  States 
or  into  any  Territory  or  District  thereof,  any  foreign  wild 
animal  or  bird,  except  under  special  permit  from  the  Sec- 
retary of  Agriculture :  Provided,  That  nothing  in  this  sec- 
tion shall  restrict  the  importation  of  natural  history  spec- 
imens for  museums  or  scientific  collections,  or  of  certain 
cage  birds,  such  as  domesticated  canaries,  parrots,  or 
such  other  birds  as  the  Secretary  of  Agriculture  may 
designate.  The  Secretary  of  the  Treasury  is  hereby  au- 
thorized to  make  regulations  for  carrying  into  effect  the 
provisions  of  this  section.  (25  May,  1900,  31  Stat.  L., 
188,  c.  553,  s.  2;  2  Supp.,  1174.) 

§  242.  Transportation  of  prohibited  animals. — It  shall 
be  unlawful  for  any  person  to  deliver  to  any  common  car- 
rier for  transportation,  or  for  any  common  carrier  to 
transport  from  any  State,  Territory,  or  District  of  the 
United  States,  to  any  other  State,  Territory,  or  District 
thereof,  any  foreign  animals  or  birds,  the  importation  of 


864  Federal  Criminal  Law  Procedure. 

which  is  prohibited,  or  the  dead  bodies  or  parts  thereof 
of  any  wild  animals  or  birds,  where  such  animals  or  birds 
have  been  killed  or  shipped  in  violation  of  the  laws  of 
the  State,  Territory,  or  district  in  which  the  same  were 
killed,  or  from  which  they  were  shipped:  Provided,  That 
nothing  herein  shall  prevent  the  transportation  of  any 
dead  birds  or  animals  killed  during  the  season  when  the 
same  may  be  lawfully  captured,  and  the  export  of  which 
is  not  prohibited  by  law  in  the  State,  Territory,  or  Dis- 
trict in  which  the  same  are  captured  or  killed :  Provided 
further,  That  nothing  herein  shall  prevent  the  importa- 
tion, transportation,  or  sale  of  birds  or  bird  plumage 
manufactured  from  the  feathers  of  barnyard  fowls.  (25 
May,  1900,  31  Stat.  L.,  188,  c,  553,  s.  3;  2  Supp.,  1174.) 

U.    S.    v.    Smith,    115    Fed.    Rep.,    423; 
U.   S.  v.   Thompson,    147    Fed.   Rep.,   637. 

§  243.  Marking  of  packages. — All  packages  contain- 
ing the  dead  bodies,  or  the  plumage,  or  parts  thereof,  of 
game  animals,  or  game  or  other  wild  birds,  when  shipped 
in  interstate  or  foreign  commerce,  shall  be  plainly  and 
clearly  .marked,  so  that  the  name  and  address  of  the  ship- 
per, and  the  nature  of  the  contents,  may  be  readily  as- 
certained on  an  inspection  of  the  outside  of  such  package. 
(25  May,  1900,  31  Stat.  L.,  188,  c.  553,  s.  4;  2  Supp.,  1174.) 

§  244.  Penalty  for  violation  of  preceding  sections. — 
For  each  evasion  or  violation  of  any  provision  of  the 
three  sections  last  preceding,  the  shipper  shall  be  fined 
not  more  than  two  hundred  dollars;  the  consignee  know- 
ingly receiving  such  articles  so  shipped  and  transported 
in  violation  of  said  section  shall  be  fined  not  more  than 
two  hundred  dollars;  and  the  carrier  knowingly  carrying 
or  transporting  the  same  in  violation  of  said  sections 
shall  be  fined  not  more  than  two  hundred  dollars.  (25 
May,  1900,  31  Stat.  L.,  188,  c.  553,  s.  4;  2  Supp.,  1174.) 

§  245.  Depositing  obscene  books,  etc.,  with  common 
carrier. — Whoever  shall  bring  or  cause  to  be  brought  in- 
1o  the  United  States  or  any  place  subject  to  the  jurisdic- 
tion thereof,  from  any  foreign  country,  or  shall  therein 
knowingly  deposit  or  cause  to  be  deposited  with  any  ex- 
press company  or  other  common  carrier,  for  carriage 
from  one  State,  Territory,  or  District  of  the  United 
S1;i1cs,  of  place  noncontiguous  to  but  subject  to  the  ju- 


Offenses  Against  Foreign  and  Interstate  Com.  865 

risdiction  thereof,  to  any  other  State,  Territory,  or  Dis- 
trict of  the  United  States,  or  place  noncontiguous  to  but 
subject  to  the  jurisdiction  thereof,  or  from  any  place  in 
or  subject  to  the  jurisdiction  of  the  United  States  through 
a  foreign  country  to  any  place  in  or  subject  to  the  juris- 
diction thereof,  or  from  any  place  in  or  subject  to  the  ju- 
risdiction of  the  United  States  to  a  foreign  country,  any 
obscene,  lewd,  or  lascivious,  or  filthy  book,  pamphlet, 
picture  paper,  letter,  writing,  print,  or  other  matter  of  in- 
decent character  or  any  drug  medicine,  article,  or  thing 
designed,  adapted,  or  intended  for  preventing  concep- 
tion, or  producing  abortion,  or  for  any  indecent  or  im- 
moral use,  or  any  written  or  printed  card,  letter,  circular, 
book,  pamphlet,  advertisement  or  notice  of  any  kind  giv- 
ing information,  directly  or  indirectly,  where,  how,  or  of 
whom,  or  by  what  means  any  of  the  hereinbefore-men- 
tioned articles,  matters,  or  things  may  be  obtained  or 
made;  or  whoever  shall  knowingly  take  or  cause  to  be 
taken  from  such  express  company  or  other  common  car- 
rier any  matter  or  thing  the  depositing  of  which  for  car- 
riage is  herein  made  unlawful,  shall  be  fined  not  more 
than  five  thousand  dollars,  or  imprisoned  not  more  than 
five  years,  or  both.  (8  Feb.,  1897,  29  Stat.  L.,  512,  c.  172; 
2  Supp.,  547.    8  Feb.,  1905,  33  Stat.  L.,  705,  c.  550.) 


55 


CHAPTER   TEN. 

THE  SLAVE  TRADE  AND  PEONAGE. 

§  246.  Confining  or  detaining  slaves  on  board  vessel. 

247.  Seizing  slaves  on  foreign  shore. 

248.  Bringing  slaves  into  the  United  States. 

249.  Equipping  vessels  for  slave  trade. 

250.  Transporting  persons  to  be  held  as  slaves. 

251.  Hovering  on  coast  with   slaves  on  board. 

252.  Serving  in  vessels  engaged  in  the  slave  trade. 

253.  Receiving  or  carrying  away  any  person  to  be  sold  or  held  as 

a  slave. 

254.  Equipping,  etc.,  vessel  for  slave  trade. 

255.  Penalty  on  persons  building,  equipping,  etc. 

256.  Forfeiture  of  vessel  transporting  slaves. 

257.  Receiving  persons  on  board  to  be  sold  as  slaves. 

258.  Vessels  found  hovering  on  coast. 

259.  Forfeiture  of  interest  in  vessels  transporting  slaves. 

260.  Seizure  of  vessels  engaged  in  the  slave  trade. 

261.  Proceeds  of  condemned  vessel,  how  distributed. 

262.  Disposal  of  persons  found  on  board  seized  vessel. 

263.  Apprehension  of  officers  and  crew. 

264.  Removal  of  persons  delivered   from  seized  vessels. 

265.  To  what  port  captured  vessels  sent. 

266.  When  owners  of  foreign  vessels  shall  give  bond. 

267.  Instructions   to   commanders   of   armed   vessels. 

268.  Kidnapping. 

269.  Holding  or  returning  persons  to  peonage. 

270.  Obstructing  enforcement  of  preceding  section.  ' 

271.  Bringing   kidnapped   persons    into   United    States. 

§  24fi.    Confining  or  detaining  slaves  on  board  vessel. 

Whoever  being  of  the  crew  or  ship's  company  of  any 
foreign  vessel  engaged  in  the  slave  trade,  or  being  of  the 
crew  or  ship's  company  of  any  vessel  owned  wholly  or  in 
part  or  navigated  for  or  in  behalf  of  any  citizen  of  the 
United  SI  ales,  forcibly  confines  or  detains  on  board  such 
vessel  any  person  as  a  slave,  or  on  board  such  vessel,  of- 
fers <»r  attempts  to  sell  as  a  slave  any  such  person,  or  on 
the  high  seas,  or  anywhere  on  tide  water,  transfers  or  de- 
livers to  any  other  vessel  any  such  person  with  in- 
tent to  make  sneh  person  a  slave,  or  lands  or  de- 
li vers  on  shore  from  on  board  such  vessel  any  per- 
son with  intent  to  make  sale  of,  or  having  previously  sold 

(866) 


The  Slave  Trade  and  Peonage.  867 

such  person  as  a  slave,  is  a  pirate,  and  shall  be  impris- 
oned for  life.  (B.  S.,  s.  5375.  15  Jan.,  1897,  29  Stat.  L., 
487,  c.  29,  s.  2;  2  Supp.,  538.) 

U.     S.    v.    Corrie,    23    L.    R.,    145,    25         v.    Libby,    1    Wood    &    M.,    221,    26    Fed. 
Fed.     Cas.,    658;     U.     S.    v.     Gordon,     5        Cas.,  928. 
Blatch.,    18,    25    Fed.    Cas.,    1364;    U.    S. 

§  247.  Seizing  slaves  on  foreign  shore. — Whoever, 
being  of  the  crew  or  ship's  company  of  any  foreign  ves- 
sel engaged  in  the  slave  trade,  or  being  of  the  crew  or 
ship's  company  of  any  vessel  owned  in  whole  or  part,  or 
navigated  for,  or  in  behalf  of,  any  citizen  of  the  United 
States,  lands  from  such  vessel,  and  on  any  foreign  shore, 
seizes  any  person  with  intent  to  make  such  person  a  slave, 
or  decoys,  or  forcibly  brings,  or  carries  or  receives  such 
person  on  board  such  vessel,  with  like  intent,  is  a  pirate, 
and  shall  be  imprisoned  for  life.  (B.  S.,  s.  5376.  15  Jan., 
1897,  29  Stat.  L.,  487,  c.  29,  s.  2;  2  Supp.,  538.) 

U.    S.    v.    Corrie,    23     L.    R.,     145,    25 
Fed.    Cas.,    658. 

§  248.  Bringing  slaves  into  the  United  States. — Who- 
ever brings  within  the  jurisdiction  of  the  United  States, 
in  any  manner  whatsoever,  any  person  from  any  foreign 
kingdom  or  country,  or  from  sea,  or  holds,  sells,  or  other- 
wise disposes  of,  any  person  so  brought  in,  as  a  slave,  or 
to  be  held  to  service  or  labor,  shall  be  fined  not  more  than 
ten  thousand  dollars,  one-half  to  the  use  of  the  United 
States  and  the  other  half  to  the  use  of  the  party  who 
prosecutes  the  indictment  to  effect;  and  moreover,  shall 
be  imprisoned  not  more  than  seven  years.  (B.  S.,  s.  5377.) 

U.    S.    v.    Libby,    1    Wood   &    M.,    221, 
26    Fed.    Cas.,    928. 

§  249.  Equipping  vessels  for  slave  trade, — Whoever 
builds,  fits  out,  equips,  loads,  or  otherwise  prepares,  or 
sends  away,  either  as  master,  factor,  or  owner,  any  ves- 
sel, in  any  port  or  place  within  the  jurisdiction  of  the 
United  States,  or  causes  such  vessel  to  sail  from  any  port 
or  place  whatsoever,  within  such  jurisdiction,  for  the  pur- 
pose of  procuring  any  person  from  any  foreign  kingdom 
or  country  to  be  transported  to  any  port  or  place  whatso- 
ever, to  be  held,  sold,  or  otherwise  disposed  of  as  a  slave, 
or  held  to  service  or  labor,  shall  be  fined  not  more  than 
five  thousand  dollars  one-half  to  the  use  of  the  United 
States  and  the  other  half  to  the  use  of  the  person  prose- 


868  Federal  Criminal  Law  Procedure. 

cuting  the  indictment  to  effect;  and  shall,  moreover,  be 
imprisoned  not  more  than  seven  years.     (R.  S.,  s.  5378.) 

§  250.  Transporting  persons  to  be  held  as  slaves. — 
Whoever,  within  the  jurisdiction  of  the  United  States, 
lakes  on  board,  receives  or  transports  from  any  foreign 
kingdom,  or  country  or  from  sea,  any  person  in  any  ves- 
sel for  the  purpose  of  holding,  selling,  or  otherwise  dis- 
posing of  such  person  as  a  slave  or  to  be  held  to  service 
or  labor,  shall  be  punished  as  prescribed  in  the  section 
last  preceding.    (R.  S.,  s.  5379.) 

§  251.  Hovering  on  coast  with  slaves  on  board. — 
Whoever,  being  the  captain,  master,  or  commander  of 
any  vessel  found  in  any  river,  port,  bay,  harbor,  or  on 
the  high  seas  within  the  jurisdiction  of  the  United  States, 
or  hovering  on  the  coast  thereof,  having  on  board  any 
person,  for  the  purpose  of  selling  such  person  as  a  slave, 
or  with  intent  to  land  such  person  for  any  such  purpose, 
shall  be  fined  not  more  than  ten  thousand  dollars  and 
imprisoned  not  more  than  four  years.     (R.  S.,  s.  5380.) 

§  252.  Serving  in  vessels  engaged  in  slave  trade. — 
Whoever,  being  a  citizen  of  the  United  States,  or  other 
person  residing  therein,  voluntarily  serves  on  board  of 
any  vessel  employed  or  made  use  of  in  the  transportation 
of  slaves  from  any  foreign  country  or  place  to  another, 
shall  be  fined  not  more  than  two  thousand  dollars  and  im- 
prisoned not  more  than  two  years.    (R.  S.,  ss.  5381,  5382.) 

§  253.  Receiving  or  carrying  away  any  person  to  be 
sold  or  held  as  a  slave. — Whoever,  being  the  master  or 
owner  or  person  having  charge  of  any  vessel,  receives  on 
board  any  other  person,  with  the  knowledge  or  intent 
that  such  person  is  to  be  carried  from  any  place  subject 
to  the  jurisdiction  of  the  United  States  to  any  other 
place,  to  be  held  or  sold  as  a  slave,  or  carries  away  from 
any  place  subject  to  the  jurisdiction  of  the  United  States 
any  such  person,  with  the  intent  that  he  may  be  so  held, 
or  sold  as  slave,  shall  be  fined  not  more  than  five  thou- 
sand dollars,  or  imprisoned  not  more  than  five  years,  or 
both.    (R.  S.,  s.  5524.) 

§  254.  Equipping,  etc.,  vessel  for  slave  trade. — No 
person  shall,  for  himself  or  for  another,  as  master,  fac- 
tor, or  owner,  build,  5t,  equip,  load,  or  otherwise  prepare 


The  Slave  Trade  and  Peonage.  869 

any  vessel  in  any  port  or  place  within  the  jurisdiction  of 
the  United  States,  or  cause  any  vessel  to  sail  from  any 
port  or  ]3lace  within  the  jurisdiction  of  the  United  States, 
for  the  purpose  of  procuring  any  person  from  any  foreign 
kingdom,  place,  or  country  to  be  transported  to  any  port 
or  place  whatsoever,  to  be  held,  sold,  or  otherwise  dis- 
posed of,  as  a  slave,  or  to  be  held  to  service  or  labor;  and 
every  vessel  so  built,  fitted  out,  equipped,  laden,  or  other- 
wise prepared,  with  her  tackle,  apparel,  furniture,  and 
lading,  shall  be  forfeited;  one  moiety  to  the  use  of  the 
United  States  and  the  other  to  the  use  of  the  person  who 
sues  for  the  forfeiture  and  prosecutes  the  same  to  effect. 
(R.  S.,  s.  5551.) 

The    Emily,    9    Wheat.,    281;    U.    S.    v.        jr.,    264,     24     Fed.     Cas.,     1280;     Re     Sah 
Gooding,     12    Wheat.,    460;      The    Slavers.        Quah,  31   Fed.  Rep.,   327.  ■ 
2   Wall.,    350;    U.    S.    v.    Brune,    2    Wall.. 

§  255.  Penalty  on  persons  building,  equipping,  etc. — 
Whoever  so  builds,  fits  out,  equips,  loads,  or  otherwise 
prepares  or  sends  away  any  vessel,  knowing  or  intending 
that  the  same  shall  be  employed  in  such  trade  or  busi- 
ness, contrary  to  the  provisions  of  the  section  last  pre- 
ceding, or  in  any  way  aids  or  abets  therein,  shall,  besides 
the  forfeiture  of  the  vessel,  pay  the  sum  of  two  thousand 
dollars;  one  moiety  thereof  to  the  use  of  the  United  States 
and  the  other  moiety  thereof  to  the  use  of  the  person  who 
sues  for  and  prosecutes  the  same  to  effect.  (R.  S.,  s. 
5552.) 

§  256.  Forfeiture  of  vessel  transporting  slaves. — 
Every  vessel  employed  in  carrying  on  the  slave  trade  or 
on  which  is  received  or  transported  any  person  from  any 
foreign  kingdom  or  country,  or  from  sea,  for  the  purpose 
of  holding,  selling,  or  otherwise  disposing  of  such  per- 
son as  a  slave,  or  of  holding  such  person  to  service  or 
labor,  shall,  together  with  her  tackle,  apparel,  furniture, 
and  the  goods  and  effects  which  may  be  found  on  board, 
or  which  may  have  been  imported  thereon  in  the  same 
voyage,  be  forfeited ;  one  moiety  to  the  use  of  the  United 
States  and  the  other  to  the  use  of  the  person  who  sues 
for  and  prosecutes  the  forfeiture  to  effect.  (R.  S.  s.  5553.) 

§  257.  Receiving  persons  on  board  to  be  sold  as  slaves. 
— Whoever,  being  a  citizen  of  the  United  States,  takes  on 
board,  receives,  or  transports  any  person  for  the  purpose 


870  Federal  Criminal  Law  Procedure. 

of  selling  such  person  as  a  slave  shall,  in  addition  to  the 
forfeiture  of  the  vessel,  pay  for  each  person  so  received 
on  board  or  transported  the  sum  of  two  hundred  dollars, 
to  be  recovered  in  any  court  of  the  United  States;  the  one 
moiety  thereof  to  the  use  of  the  United  States  and  the 
other  moiety  to  the  use  of  the  person  who  sues  for  and 
prosecutes  the  same  to  effect.     (R.  S.,  s.  5554.) 

§  258.  Vessels  found  hovering  on  coast. — Every  ves- 
sel which  is  found  in  any  river,  port,  bay,  or  harbor,  or 
on  the  high  seas,  within  the  jurisdiction  of  the  United 
States,  or  hovering  on  the  coasts  thereof,  and  having  on 
board  any  person,  with  intent  to  sell  such  person  as  a 
slave,  or  with  intent  to  land  the  same  for  that  purpose, 
either  in  the  United  States  or  elsewhere,  shall,  together 
with  her  tackle,  apparel,  furniture,  and  the  goods  or  ef- 
fects on  board  of  her,  be  forfeited  to  the  United  States. 
(R.  S.,  s.  5555.) 

§  259.  Forfeiture  of  interest  in  vessels  transporting 
slaves. — It  shall  be  unlawful  for  any  citizen  of  the  United 
States,  or  other  person  residing  therein,  or  under  the 
jurisdiction  thereof,  directly  or  indirectly  to  hold  or  have 
any  right  or  property  in  any  vessel  employed  or  made 
use  of  in  the  transportation  or  carrying  of  slaves  from 
one  foreign  country  or  place  to  another,  and  any  such 
right  or  property  shall  be  forfeited,  and  may  be  libeled 
and  condemned  for  the  use  of  the  person  suing  for  the 
same.  Whoever  shall  violate  the  prohibition  of  this  sec- 
tion shall  also  forfeit  and  pay  a  sum  of  money  equal  to 
double  the  value  of  his  right  or  property  in  such  vessel ; 
and  shall  also  forfeit  a  sum  of  money  equal  to  double 
the  value  of  the  interest  he  had  in  the  slaves  which  at 
any  time  may  be  transported  or  carried  in  such  vessels. 
(R.  S.,  s.  5556.) 

§  260.  Seizure  of  vessels  engaged  in  the  slave  trade. 
— The  President  is  authorized,  when  he  deems  it  expe- 
dient, to  man  and  employ  any  of  the  armed  vessels  of  the 
United  States  to  cruise  wherever  he  may  judge  attempts 
are  making  to  carry  on  the  slave  trade,  by  citizens  or 
residents  of  the  United  States,  in  contravention  of  laws 
prohibitory  of  the  same;  and,  in  such  case,  he  shall  in- 
struct the  commanders  of  such  armed  vessels  to  seize, 


The  Slave  Trade  and  Peonage.  871 

take,  and  bring  into  any  port  of  the  United  States,  to  be 
proceeded  against  according  to  law,  all  American  ves- 
sels, wheresoever  found,  which  may  have  on  board,  or 
which  may  be  intended  for  the  purpose  of  taking  on 
board,  or  of  transporting,  or  may  have  transported  any 
person,  in  violation  of  the  provisions  of  any  act  of  Con- 
gress prohibiting  the  traffic  in  slaves.     (R.  S.,  s.  5557.) 

§  261.  Proceeds  of  condemned  vessels,  how  distribut- 
ed.— The  proceeds  of  all  vessels,  their  tackle,  apparel,  and 
furniture,  and  the  goods  and  effects  on  board  of  them, 
which  are  so  seized,  prosecuted,  and  condemned,  shall  be 
paid  into  the  Treasury  of  the  United  States.  (R.  S.,  s. 
5558.) 

§  262.  Disposal  of  persons  found  on  board  seized  ves- 
sel.— The  officers  of  the  vessel  making  such  seizure  shall 
safely  keep  every  person  found  on  board  of  any  vessel 
so  seized,  taken,  or  brought  into  port  for  condemnation, 
and  shall  deliver  every  such  person  to  the  marshal  of  the 
district  into  which  he  may  be  brought,  if  into  a  port  of 
the  United  States,  or  if  elsewhere,  to  such  person  as  may 
unlawfully  appointed  by  the  President,  in  the  manner  di- 
rected by  law,  transmitted  to  the  President,  as  soon  as 
may  be  after  such  delivery,  a  descriptive  list  of  such  per- 
sons, in  order  that  he  may  give  directions  for  the  dispos- 
al of  them.     (R.  S.,  s.  5559.) 

§  263.  Apprehension  of  officers  and  crew. — The  com- 
manders of  such  commissioned  vessels  shall  cause  to  be 
apprehended  and  taken  into  custody  every  person  found 
on  board  of  such  offending  vessel  so  seized  and  taken,  be- 
ing of  the  officers  or  crew  thereof,  and  him  convey,  as  soon 
as  conveniently  may  be,  to  the  civil  authority  of  the  Unit- 
ed States,  to  be  proceeded  against  in  due  course  of  law. 
(R.  S.,  s.  5560.) 

§  264.  Removal  of  persons  delivered  from  seized  ves- 
sels..— The  President  is  authorized  to  make  such  regula- 
tions and  arrangements  as  he  may  deem  expedient  for 
the  safe  keeping,  support,  and  removal  beyond  the  limits 
of  the  United  States  of  all  such  persons  as  may  be  so  de- 
livered and  brought  within  its  jurisdiction.  (R.  S.,  s. 
5561.) 


872  Federal  Criminal  Law  Procedure. 

§  265.  To  what  port  captured  vessels  sent. — It  shall 
be  the  duty  of  the  commander  of  any  armed  vessel  of 
the  United  States,  whenever  he  makes  any  capture  un- 
der the  preceding  provisions,  to  bring  the  vessel  and  her 
cargo,  for  adjudication,  into  some  port  of  the  State,  Ter- 
ritory, or  District  to  which  such  vessel  so  captured  may 
belong,  if  he  can  ascertain  the  same ;  if  not,  then  into  any 
convenient  port  of  the  United  States.     (R.  S.,  s.  5563.) 

§  266.  When  owners  of  foreign  vessels  shall  give 
bond. — Every  owner,  master,  or  factor  of  any  foreign  ves- 
sel clearing  from  any  port  within  the  jurisdiction  of  the 
United  States,  and  suspected  to  be  intended  for  the  slave 
trade,  and  the  suspicion  being  declared  to  the  officer  of 
the  customs  by  any  citizen,  on  oath,  and  such  informa- 
tion being  to  the  satisfaction  of  the  officer,  shall  first  give 
bond,  with  sufficient  sureties,  to  the  Treasurer  of  the 
United  States  that  none  of  the  natives  of  any  other  for- 
eign country  or  place  shall  be  taken  on  board  such  vessel 
to  be  transported  or  sold  as  slaves  in  any  other  foreign 
port  or  place  whatever,  within  nine  months  thereafter. 
(R.  S.,  s.  5564.) 

§  267.  Instructions  to  commanders  of  armed  vessels. 
— The  President  is  authorized  to  issue  instructions  to  the 
commanders  of  the  armed  vessels  of  the  United  States, 
directing  them,  whenever  it  is  practicable,  and  under 
such  rules  and  regulations  as  he  may  prescribe,  to  pro- 
ceed directly  to  the  country  from  which  they  were  taken, 
and  there  hand  over  to  the  agent  of  the  United  States 
all  such  persons,  delivered  from  on  board  vessels  seized 
in  the  prosecution  of  the  slave  trade;  and  they  shall 
afterward  bring  the  captured  vessels  and  persons  en- 
gaged in  prosecuting  such  trade  to  the  United  States  for 
trial  and  adjudication.  R.  S.,  s.  5567. 

§  268.  Kidnaping. — Whoever  kidnaps  or  carries  away 
any  other  person,  with  the  intent  that  such  other 
person  be  sold  into  involuntary  servitude,  or  held  as  a 
slave;  or  who  entices,  persuades,  or  induces  any  other 
person  to  go  on  board  any  vessel  or  to  any  other  place 
with  the  intent  that  he  may  be  made  or  held  as  a  slave, 
or  sent  out  of  the  country  to  be  so  made  or  held ;  or  who 
in  any  way  knowingly  aids  in  causing  any  other  person 


The  Slave  Trade  and  Peonage.  873 

to  be  held,  sold,  or  carried  away  to  be  held  or  sold  as  a 
slave,  shall  be  fined  not  more  than  five  thousand  dollars, 
or  imprisoned  not  more  than  five  years,  or  both.  (R.  S., 
s.  5525.) 

§  269.  Holding  or  returning  person  to  peonage. — 
Whoever  holds,  arrests,  returns,  or  causes  to  be  held, 
arrested,  or  returned,  or  in  any  manner  aids  in  the  arrest 
or  return  of  any  person  to  a  condition  of  peonage,  shall 
be  fined  not  more  than  five  thousand  dollars,  or  impris- 
oned not  more  than  five  years,  or  both.     (R.  S.,  s.  5526.) 

Clyatt     v.     U.     S..     197     U.     S.,  207;  252;   U.    S.   v.   McClellan,   127  Fed.   Rep., 

Peonage;     Cases,     123     Fed.     Rep.,  671;  971;    U.    S.   v.    Cole,    153    Fed.  Rep.,    801; 

136     Fed.     Rep.,     707;     138     Fed.  Rep.,  U.    S.    v.    Clement,    171    Fed.  Rep.,    974. 

686;    U.    S.   v.    Eberhart,    127    Fed.  Rep., 

§  270.  Obstructing  execution  of  above. — Whoever  ob- 
structs, or  attempts  to  obstruct,  or  in  any  way  interferes 
with  or  prevents  the  enforcement  of  the  section  last  pre- 
ceding, shall  be  liable  to  the  penalties  therein  prescribed. 
(R.  S.  s.  5527). 

§  271.  Bringing  kidnapped  persons  into  United 
States. — Whoever  shall  knowingly  and  willfully  bring 
into  the  United  States  or  any  place  subject  to  the  juris- 
diction thereof,  any  person  inveigled  or  forcibly  kidnap- 
ped in  any  other  country,  with  intent  to  hold  such  person 
so  inveigled  or  kidnapped  in  confinement  or  to  any  in-, 
voluntary  servitude;  or  whoever  shall  knowingly  and 
willfully  sell,  or  cause  to  be  sold,  into  any  condition  of 
involuntary  servitude,  any  other  person  for  any  term 
whatever;  or  whoever  shall  knowingly  and  willfully  hold 
to  involuntary  servitude  any  person  so  brought  or  sold, 
shall  be  fined  not  more  than  five  thousand  dollars  and 
imprisoned  not  more  than  five  years.  (23  June,  1874,  18 
Stat.  L.  251,  c.  464,  s.  1;  1  Supp.,  46). 


CHAPTER       ELEVEN. 

OFFENSES    WITHIN    THE    ADMIRALTY    AND    MARITIME    AND 

THE    TERRITORIAL   JURISDICTION    OF    THE 

UNITED   STATES. 

§  272.  Places  within  or  waters  upon  which  sections  of  this  chapter 
shall  apply. 

273.  Murder. 

274.  Manslaughter. 

275.  Punishment  for  murder;    for  manslaughter. 

276.  Assault  with  intent  to  commit  murder,  rape,  robbery,  etc. 

277.  Attempt   to  commit   murder   or   manslaughter. 

278.  Rape. 

279.  Having  carnal  knowledge  of  female   under  sixteen. 

280.  Seduction   of  female  passenger  on   vessel. 

281.  Payment  of  fine  to  female  seduced;    evidence  required;   limita- 

tion on  indictment. 

282.  Loss  of  life  by  misconduct  of  officers,  etc.,  of  vessels. 

283.  Maiming. 

284.  Robbery. 

285.  Arson  of  dwelling  house. 

286.  Arson  of  other  buildings,  etc. 

287.  Larceny. 

288.  Receiving,  etc.,  stolen  goods. 

289.  Laws  of  States  adopted   for  punishing  wrongful   acts,   etc. 

§  272.  Maritime  and  territorial  jurisdiction  prescrib- 
ed.— The  crimes  and  offenses  denned  in  this  chapter 
shall  be  punished  as  herein  prescribed: 

First.  When  committed  upon  the  high  seas,  or  on  any 
other  waters  within  the  admiralty  and  maritime  juris- 
diction of  the  United  States  and  out  of  the  jurisdiction 
of  any  particular  State,  or  when  committed  within  the 
admiralty  and  maritime  jurisdiction  of  the  United  States 
and  out  of  the  jurisdiction  of  any  particular  State  on 
board  any  vessel  belonging  in  whole  or  in  part  to  the 
United  States  or  any  citizen  thereof,  or  to  any  corpo-' 
ration  created  by  or  under  the  laws  of  the  United  States, 
or  of  any  State,  Territory,  or  District  thereof.  (R.  S.  s. 
5339.) 

Wynne  v.  U.  S.,  217  U.  S.,  234. 

Second.  When  committed  upon  any  vessel  registered 
licensed,  or  enrolled  under  the  laws  of  the  United  States, 

(874) 


Offenses,  Etc.,  of  the  United  States.  875 

and  being  on  a  voyage  upon  the  waters  of  any  of  the  Great 
Lakes,  namely:  Lake  Superior,  Lake  Michigan,  Lake 
Huron,  Lake  Saint  Clair,  Lake  Erie,  Lake  Ontario,  or 
any  of  the  waters  connecting  any  of  said  lakes,  or  upon 
the  River  Saint  Lawrence  where  the  same  constitutes  the 
International  boundary  line.  (4  Sept.,  1890,  26  Stat.  L., 
421,  c.  874  s.  1;  1  Supp.,  799.) 

U.    S.   v.   Rogers,    ISO   U.    S.,   249;    Ex        S.    v.    Rogers,    46    Fed.    Rep.,    1;    U.    S. 
parte    Byers,    32    Fed.    Rep.,    46,    404;    U.        v.   Peterson,   64   Fed.   Rep.,   14S. 

Third.  "When  committed  within  or  on  any  lands  re- 
served or  acquired  for  the  exclusive  use  of  the  United 
States,  and  under  the  exclusive  jurisdiction  thereof,  or 
any  place  purchased  or  otherwise  acquired  by  the  United 
States  by  consent  of  the  legislature  of  the  State  in  which 
the  same  shall  be,  for  the  erection  of  a  fort,  magazine, 
arsenal,  dockyard,  or  other  needful  building.  (Const., 
Art.  1,  sec.  8,  cl.  17.) 

Fourth.  On  any  island,  rock,  or  key,  containing  de- 
posits of  guano,  which  may,  at  the  discretion  of  the  Pres- 
ident, be  considered  as  appertaining  to  the  United  States. 
(R.  S.,  s.  5570.) 

Jones   v.    U.    S.,    137    U.    S.,    202. 

§  273.  Murder. — Murder  is  the  unlawful  killing  of  a 
human  being  with  malice  aforethought.  Every  murder 
perpetrated  by  poison,  lying  in  wait,  or  any  other  kind  of 
willful,  deliberate,  malicious,  and  premeditated  killing; 
or  committed  in  the  perpetration  of,  or  attempt  to  perpe- 
trate any  arson,  rape,  burglary,  or  robbery;  or  perpetrat- 
ed from  a  premeditated  design  unlawfully  and  malicious- 
ly to  effect  the  death  of  any  human  being  other  than  him 
who  is  killed,  is  murder  in  the  first  degree.  Any  other 
murder  is  murder  in  the  second  degree.     (R.  S.,  s.  5339.) 

U.    S.    v.    Cornell,  25    Fed.    Cas.,    646;  v.     Meagher,    37    Fed.    Rep.,    875;  U.  S 

U.   S.   v.   Holmes,   5   Wheat.,   412;    U.    S.  v.    Clark,    46    Fed.    Rep.,    633;    U.  S.  v 

v.   Rogers,   4  How.,    567;    Ex  parte   Crew  Hewecker,    79    Fed.    Rep.,    59;    U.  S.  v 

Dog,     109     U.     S.,     556     Cook    v.    U.     S.,  Carter,     84     Fed.     Rep.,     622;      U.  S.  v, 

138   U.    S..    157;    Ball   v.   U.    S.,    140   U.  Lewis,    111    Fed.    Rep.,    630;     U.  S.  v 

S.,    118;    St.    Clair   v.    U.    S.,    154   U.    S.,  Linnier,     125     Fed.     Rep.,    83;    U.  S.  v 

134;    Sparf    &    Hansen    v.    U.    S..    156    U.  Tully,     140     Fed.     Rep.,     899;     U.  S.  v 

S.,    51;    Winston    v.    U.    S.,    172    U.    S.,  Newth,    149    Fed.    Rep.,    302;     U.  S.  v 

303;   Battle  v.   U.    S..  209   U.    S..   36;   U.  Battle,    154    Fed.    Rep.,    540;     U.  S.  v 

S.   v.    Martin,    14    Fed.    Rep.,    817;    U.    S.  Guiteau,    1    Mackey    (D.    C),    498. 

§  274.  Manslaughter. — Manslaughter  is  the  unlawful 
killing  of  a  human  being  without  malice.  It  is  of  two 
kinds; 


876  Federal  Criminal  Law  Procedure. 

First.  Voluntary — upon  a  sudden  quarrel  or  heat  of 
passion. 

Second.  Involuntary — in  the  commission  of  an  unlaw- 
ful act  not  amounting  to  a  felony,  or  in  the  commission 
of  a  lawful  act  which  might  produce  death,  in  an  unlaw- 
ful manner,  or  without  due  caution  and  circumspection. 
(R.  S.,  s.  5341.) 

Roberts   v.    U.   S.,    126   Fed.    Rep.,   S97. 

§  275.  Punishment  for  murder;  for  manslaughter, — 
Every  person  guilt}^  of  murder  in  the  first  degree  shall 
suffer  death.  Every  person  guilty  of  murder  in  the  sec- 
ond degree  shall  be  imprisoned  not  less  than  ten  years 
and  may  be  imprisoned  for  life.  Every  person  guilty  of 
voluntary  manslaughter  shall  be  imprisoned  not  more 
than  ten  years.  Every  person  guilty  of  involuntary  man- 
slaughter shall  be  imprisoned  not  more  than  three  years, 
or  fined  not  exceeding  one  thousand  dollars,  or  both. 
(R.  S.,  ss.  5339,  5343.) 

§  276.  Assault  with  intent  to  commit  murder,  rape, 
robbery,  etc. — Whoever  shall  assault  another  with  intent 
(to  commit  murder,  or  rape,  shall  be  imprisoned  not  more 
than  twenty  years.  Whoever  shall  assault  another  with 
intent  to  commit  any  felony,  except  murder,  or  rape,  shall 
be  fined  not  more  than  three  thousand  dollars,  or  impris- 
oned not  more  than  ten  years,  or  both.  Whoever,  with 
intent  to  do  bodily  harm,  and  without  just  cause  or  ex- 
cuse, shall  assault  another  with  a  dangerous  weapon,  in- 
strument, or  other  thing,  shall  be  fined  not  more  than  one 
thousand  dollars,  or  imprisoned  not  more  than  five  years, 
or  both.  Whoever  shall  unlawfully  strike,  beat,  or  wound 
another,  shall  be  fined  not  more  than  five  hundred  dol- 
lars, or  imprisoned  not  more  than  six  months,  or  both. 
Whoever  shall  unlawfully  assault  another,  shall  be  fined 
not  more  than  three  hundred  dollars,  or  imprisoned  not 
more  than  three  months,  or  both.     (R.  S.,  s.  5346.) 

§  277.  Attempt  to  commit  murder  or  manslaughter. 
• — Whoever  shall  attempt  to  commit  murder  or  man- 
slaughter, except  as  provided  in  the  preceding  section, 
shall  be  fined  not  more  than  one  thousand  dollars  and  im- 
prisoned not  more  than  three  years.     (R.  S.,  s.  5342.) 


Offenses,  Etc.,  of  the  United  States.  877 

§  278.  Rape. — Whoever  shall  commit  the  crime  of 
rape  shall  suffer  death.  (R.  S.,  s.  5345.  9  Feb.,  1889,  25 
Stat.  L.,  658,  c.  120;  1  Supp.,  641.) 

§  279.  Having  carnal  knowledge  of  female  under  16. 
— Whoever  shall  carnally  and  unlawfully  know  any  fe- 
male under  the  age  of  sixteen  years,  or  shall  be  accessory 
to  such  carnal  and  unlawful  knowledge  before  the  fact, 
shall,  for  a  first  offense,  be  imprisoned  not  more  than  fif- 
teen years,  and  for  a  subsequent  offense  be  imprisoned 
not  more  than  thirty  years.  (9  Feb.,  1889,  25  Stat.  L., 
658,  c.  120;  1  Supp./ 641.) 

§  280.  Seduction  of  female  passenger  on  vessel. — 
Every  master,  officer,  seaman,  or  other  person  employed 
on  board  of  any  American  vessel  who,  during  the  voyage, 
under  promise  of  marriage,  or  by  threats,  or  the  exercise 
of  authority,  or  solicitation,  or  the  making  of  gifts  or 
presents,  seduces  and  has  illicit  connection  with  any  fe- 
male passenger,  shall  be  fined  not  more  than  one  thous- 
and dollars  or  imprisoned  not  more  than  one  year,  or 
both;  but  subsequent  intermarriage  of  the  parties  may 
be  pleaded  in  bar  of  conviction.     (R.  S.,  s.  5349.) 

§  281.  Payment  of  fine  to  female  seduced;  evidence 
required;  limitation  on  indictment. — When  a  person  is 
convicted  of  a  violation  of  the  section  last  preceding,  the 
court  may,  in  its  discretion,  direct  that  the  amount  of  the 
fine,  when  paid,  be  paid  for  the  use  of  the  female  seduced, 
or  her  child,  if  she  have  any ;  but  no  conviction  shall  be 
had  on  the  testimony  of  the  female  seduced,  without  other 
evidence,  nor  unless  the  indictment  is  found  within  one 
year  after  the  arrival  of  the  vessel  on  which  the  offense 
was  committed  at  the  port  of  its  destination.  (R.  S.,  ss. 
5350,  5351.) 

§  282.  Punishment  for  loss  of  life  by  misconduct  of 
officers,  owners,  charterers,  inspectors,  etc.,  of  vessels.. — 
Every  captain,  engineer,  pilot,  or  other  person  employed 
on  any  steamboat  or  vessel,  by  whose  misconduct,  neg- 
ligence, or  inattention  to  his  duties  on  such  vessel  the  life 
of  any  person  is  destroyed,  and  every  owner,  charterer, 
inspector,  or  other  public  officer,  through  whose  fraud, 
neglect,  connivance,  misconduct,  or  violation  of  law  the 
life  of  any  person  is  destroyed,  shall  be  fined  not  more 


878  Federal  Criminal  Law  Procedure. 

than  ten  thousand  dollars,  or  imprisoned  not  more  than 
ten  years,  or  both:  Provided,  That,  when  the  owner  or 
charterer  of  any  steamboat  or  vessel  shall  be  a  corpora- 
tion, any  executive  officer  of  such  corporation,  for  the 
time  being  actually  charged  with  the  control  and  man- 
agement of  the  operation,  equipment,  or  navigation  of 
such  steamboat  or  vessel,  who  has  knowingly  and  will- 
fully caused  or  allowed  such  fraud,  neglect,  connivance, 
misconduct  or  violation  of  law  by  which  the  life  of  any 
person  is  destroyed  shall  be  fined  not  more  than  ten  thou- 
sand dollars  or  imprisoned  not  more  than  ten  years,  or 
both.  (R.  S.,  s.  5344.  3  Mar.,  1905,  33  Stat.  L.',  1025,  c. 
1454,  s.  5.) 

U.    S.  v.   Holmes,    104   Fed.   Rep.,   884;         592;    Van    Schaick    v.    U.    S.,    159    Fed. 
U.     S.    v.    Van    Schaick,    134    Fed.    Rep.,         Rep.,    847. 

§  283.  Maiming. — Whoever  with  intent  to  maim  or 
disfigure,  shall  cut,  bite,  or  slit,  the  nose,  ear,  or  lip,  or 
cut  out  or  disable  the  tongue,  or  put  out  or  destroy  an 
eye  or  cut  off  or  disable  a  limb  or  any  member  of  another 
person;  or  whoever,  with  like  intent,  shall  throw  or  pour 
upon  another  person,  any  scalding  hot  water,  vitriol,  or 
other  corrosive  acid,  or  caustic  substance  whatever,  shall 
be  fined  not  more  than  one  thousand  dollars,  or  impris- 
oned not  more  than  seven  years,  or  both.    (R.  S.,  s.  5348.) 

§  284.  Robbery. — Whoever,  by  force  and  violence,  or 
by  putting  in  fear,  shall  feloniously  take  from  the  person 
or  presence  of  another  anything  of  value,  shall  be  im- 
prisoned not  more  than  fifteen  years.     (R.  S.,  s.  5370.) 

§  285.  Arson  of  dwelling  house. — Whoever  shall  will- 
fully and  maliciously  set  fire  to,  burn,  or  attempt  to  burn, 
or  by  means  of  a  dangerous  explosive  destroy  or  attempt 
to  destroy,  any  dwelling  house,  or  any  store,  barn,  sta- 
ble, or  other  building,  parcel  of  a  dwelling,  house,  shall 
be  imprisoned  not  more  than  twenty  years.  (R.  S.,  s. 
5385.) 

14  A.  G.  Op.,  559. 

§  286.  Arson  of  arsenal,  etc.;  other  building,  etc. — 
Whoever  shall  maliciously  set  fire  to,  burn,  or  attempt 
to  burn,  or  by  any  means  destroy  or  injure,  or  attempt  to 
destroy  or  injure,  any  arsenal,  armory,  magazine,  rope- 
walk,  ship-house,  warehouse  blockhouse,  or  barrack,  or 


Offenses,  Etc.,  op  the  United  States.  870 

any  store-house,  barn,  or  stable  not  parcel  of  a  dwelling 
house  or  any  other  building  not  mentioned  in  the  section 
last  preceding,  or  any  vessel  built,  building,  or  undergo- 
ing repair,  or  any  light-house,  or  beacon,  or  any  machin- 
ery, timber,  cables,  rigging,  or  other  materials  or  appli- 
ances for  building,  repairing,  or  fitting  out  vessels,  or  any 
pile  of  wood,  boards,  or  other  lumber,  or  any  military, 
naval,  or  victualing  stores,  arms  or  other  munitions  of 
war,  shall  be  fined  not  more  than  five  thousand  dollars 
and  imprisoned  not  more  than  twenty  years.  (R.  S.,  s. 
5386.) 

U.   S.   v.   Cardish,    143    Fed.   Rep.,   640. 

§  287.  Larceny. — Whoever  shall  take  and  carry 
away,  with  intent  to  steal  or  purloin,  any  personal  prop- 
erty of  another,  shall  be  punished  as  follows :  If  the  prop- 
erty taken  is  of  a  value  exceeding  fifty  dollars,  or  is  taken 
from  the  person  of  another,  by  a  fine  of  not  more  than 
ten  thousand  dollars,  or  imprisonment  for  not  more  than 
ten  years,  or  both;  in  all  other  cases,  by  a  fine  of  not  more 
than  one  thousand  dollars,  or  by  imprisonment  not  more 
than  one  year,  or  both.  If  the  property  stolen  consists  of 
any  evidence  of  debt,  or  other  written  instrument,  the 
amount  of  money  due  thereon,  or  secured  to  be  paid 
thereby,  and  remaining  unsatisfied,  or  which  in  any  con- 
tingency might  be  collected  thereon,  or  the  value  of  the 
property  the  title  to  which  is  shown  thereby,  or  the  sum 
which  might  be  recovered  in  the  absence  thereof,  shall 
be  deemed  to  be  the  value  of  the  property  stolen.  (R.  S., 
s.  5356.) 

Ex   parte    Crow    Dog    109    U.    S.,    556;  Obs.,    3,    26    Fed.    Cas.,    558;    U.    S.    v. 

U.    S.   v.    Davis,   5    Mason.    356,   25    Fed.  Maxon,     5     Blatch.,     360,    26     Fed.    Cas., 

Cas.,  781;   U.   S.  v.   Davis,  2  N.  Y.  Leg.  1220;    U.    S.    v.    Morel,    13    Am.    Jurist, 

Obs.,    35,    25    Fed.    Cas.,    784;    U.    S.    v.  279,     26     Fed.     Cas.,     1310;     Cochran     v. 

Hamilton,    1    Mason,    152,    26    Fed.    Cas.,  U.    S.,    147    Fed.    Rep.,    206. 
93;    U.    S.    v.    Jackson,    2    N.     V.    he?. 

§  288.  Receiving,  etc.,  stolen  goods. — Whoever  shall 
buy,  receive,  or  conceal,  any  money,  goods,  bank  notes, 
or  other  thing  which  may  be  the  subject  of  larceny,  which 
has  been  feloniously  taken,  stolen,  or  embezzled,  from  any 
other  person,  knowing  the  same  to  have  been  so  taken, 
stolen,  or  embezzled,  shall  be  fined  not  more  than  one 
thousand  dollars  and  imprisoned  not  more  than  three 
years;  and  such  person  may  be  tried  either  before  or  af- 


880  Fedeeal  Criminal  Law  Procedure. 

ter  the  conviction  of  the  principal  offender.     (R.  S.,  s. 
5357.) 

Ex   parte    Crow    Dog,    109    U.    S.,    556. 
Bise   v.    U.    S.,    144    Fed.    Rep.,    374. 

§  289.  Laws  of  States  adopted  for  punishing  wrong- 
ful acts,  etc. — Whoever,  within  the  territorial  limits  of 
any  State,  organized  Territory,  or  district,  but  within  or 
upon  any  of  the  places  now  existing,  or  hereafter  reserved 
or  acquired,  described  in  section  two  hundred  and  seven- 
ty-two of  this  act,  shall  do  or  omit  the  doing  of  any  act 
or  thing  which  is  not  made  penal  by  any  law  of  Congress, 
but  which  if  committed  or  omitted  within  the  jurisdic- 
tion of  the  State,  Territory,  or  District  in  which  such 
place  is  situated,  by  the  laws  thereof  now  in  force  would 
be  penal,  shall  be  deemed  guilty  of  a  like  offense  and  be 
subject  to  a  like  punishment;  and  every  such  State,  Ter- 
ritorial, or  District  law  shall,  for  the  purposes  of  this  sec- 
tion continue  in  force,  notwithstanding  any  subsequent 
repeal  or  amendment  thereof  by  any  such  State,  Terri- 
tory, or  District.  (R.  S.,  s.  5391.  7  July,  1898,  30  Stat. 
L.,  717,  s.  2;  2  Supp.,  885.) 

U.    S.   v.   Hudson,    7   Cr„   32;   U.   S.  v.  Cas.,   791;    U.    S.   v.    Coppersmith,    4   Fed. 

Paul, '6  Pet.,   141;   Ex  parte   Siebold,   100  Rep.,    205;    U.    S.    v.    Barnaby,    51    Fed. 

U.     S.,     388;     Franklin    v.     U.     S.,     216  Rep.,    23;    In    re    Kelly,    71     Fed.    Rep., 

U.    S.,    559;    U.    S.    v.    Barney,    24    Fed.  545. 
Cas.,    1011;    U.    S.    v.    Wright,    28    Fed. 


CHAPTEE       TWELVE. 

PIRACY  AND  OTHER  OFFENSES  UPON  THE  SEAS. 

§  290.  Piracy   under  the   law   of  nations. 

291.  Mal-treatment  of  crew  by  officers  of  vessel. 

292.  Inciting  revolt  or  mutiny  on  shipboard. 

293.  Revolt  and  mutiny  on  shipboard. 

294.  Seaman  laying  violent  hands  on  his  commander. 

295.  Abandonment  of  mariners  in  foreign  ports. 

296.  Conspiracy  to  cast  away  vessel. 

297.  Plundering  vessel  in  distress,  etc. 

298.  Attacking  vessel  with  intent  to  plunder. 

299.  Breaking  and  entering  vessel,  etc. 

300.  Owner  destroying  vessel  at  sea. 

301.  Other    persons    destroying    or    attempting    to    destroy    vessel 

at  sea. 

302.  Robbery  on  shore  by  crew  of  piratical  vessel. 

303.  Arming  vessel  to  cruise  against  citizens  of  the  United  States. 

304.  Piracy  under  color  of  a  foreign  commission. 

305.  Piracy  by  subjects  or  citizens  of  a  foreign  state. 

306.  Running  away  with  or  yielding  up  vessel  or  cargo. 

307.  Confederating,  etc.,  with  pirates. 

308.  Sale  of  arms  and  intoxicants  forbidden  in  Pacific   islands. 

309.  Offenses  under  preceding  section  deemed  on  high  seas. 

310.  "Vessels  of  the  United   States"  defined. 

§  290.  Piracy  under  the  law  of  nations. — Whoever,  on 
the  high  seas,  commits  the  crime  of  piracy  as  defined  by 
the  law  of  nations,  and  is  afterwards  brought  into  or 
found  in  the  United  States,  shall  be  imprisoned  for  life. 
(R.  S.,  s.  5368.  15  Jan.,  1897,  29  Stat.  L.,  487,  c.  29,  s.  2; 
2  Supp.,  538.) 

U.    S.   v.    Smith,    5   Wheat.,    153,   U.    S.        Friends,     166     U.     S.,     1;     The    Ambrose 
v.    Pirates,    5     Wheat.,     184;      The    Three        Light,    25    Fed.    Rep.,    408. 

§  291.  Mal-treatment  of  crew  by  officers  of  vessel. — 
"Whoever,  being  the  master  or  officer  of  a  vessel  of  the 
United  States,  on  the  high  seas,  or  on  any  other  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States,  beats,  wounds,  or  without  justifiable 
cause,  imprisons  any  of  the  crew  of  such  vessel,  or  with- 
holds from  them  suitable  food  and  nourishment,  or  in- 
flicts upon  them  any  cruel  and  unusual  punishment,  shall 
be  fined  not  more  than  one  thousand  dollars,  or  impris- 

(881) 

56 


882 


Federal  Criminal  Law  Procedure. 


oned  not  more  than  five  years  or  both.  Nothing  herein 
contained  shall  be  construed  to  repeal  or  modify  section 
forty-six  hundred  and  eleven  of  the  Revised  Statutes. 
(R.  S.,  s.  5347.  3  Mar.,  1897,  29  Stat.  L.,  691,  c.  389,  s. 
18;  2  Supp.,  609.) 

U.   S.   v.   Dauscher,    119   U.    S.,   407;    U.  740;    U.    S.    v.    Freeman,    4    Mason,    505, 

S.  v.  Alden,    1   Sprague,  95,  24   Fed.   Cas.,  25    Fed.    Cas.,    1208;    U.    S.    v.    Taylor,    2 

768;   U.   S.  v.   Bennett,  3   Hughes,  466,  24  Sumn.,     584,    28     Fed.     Cas.,     31;     U.     S. 

Fed.     Cas.,     1111;     U.     S.     v.     Collins,     2  v.    Winn,    3     Sumn.,    209,    28    Fed.    Cas., 

Curtis,     194,    25    Fed.    Cas.,    545;     U.     S.  733;    Re    Smith,    13    Fed.    Rep.,   25;    U.    S. 

v.    Cutler,    1    Curtis,    501,    25    Fed.    Cas.,  v.   Trice,   30   Fed.   Rep.,    490. 

§  292.  Inciting  revolt  or  mutiny  on  shipboard. — Who- 
ever, being  of  the  crew  of  a  vessel  of  the  United  States, 
on  the  high  seas,  or  on  any  other  waters  within  the  ad- 
miralty and  maritime  jurisdiction  of  the  United  States, 
endeavors  to  make  a  revolt  or  mutiny  on  board  such  ves- 
sel, on  combines,  conspires,  or  confederates  with  any 
other  person  on  board  to  make  such  revolt  or  mutiny,  or 
solicits,  incites,  or  stirs  up  any  other  of  the  crew  to  dis- 
obey or  resist  the  lawful  orders  of  the  master  or  other 
officer  of  such  vessel,  or  to  refuse  or  neglect  their  proper 
duty  on  board  thereof,  or  to  betray  their  proper  trust,  or 
assembles  with  others  in  a  tumultuous  and  mutinous 
manner,  or  makes  a  riot  on  board  thereof,  or  unlawfully 
confines  the  master  or  other  commanding  officer  thereof, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  im- 
prisoned not  more  than  five  vears,  or  both.  (R.  S.,  s. 
5359.) 


U.  S.  v.  Kelly,  11  Wheat.,  417;  The 
Hibernia,  1  Sprague,  78,  12  Fed.  Cas., 
112;  U.  S.  v.  Ashton,  2  Sumn.,  13,  24  Fed. 
Cas.,  873;  U.  S.  v.  Barker,  5  Mason,  404, 
24  Fed.  Cas.,  985;  U.  S.  v.  Bladen,  Bet. 
C.  C,  213,  24  Fed.  Cas.,  1161:  U.  S.  v. 
Borden,  1  Sprague,  374,  24  Fed.  Cas., 
1202;  U.  S.  v.  Cassedy,  2  Sumn.,  582,  15 
Fed.  Cas.,  321;  U.  S.  v.  Gardner,  5  Ma- 
son, 402,  25  Fed.  Cas.,  1259;  U.  S.  v. 
Civings,  1  Sprague,  75,  25  Fed.  Cas., 
1331;  U.  S.  v.  Haines,  5  Mason,  272,  26 
Fed.  Cas.,  62;  U.  S.  v.  Hamilton,  1 
Mason,  443,  26  Fed.  Cas.,  93;  U.  S.  v. 
Hemmer,  4  Mason,  105,  26  Fed.  Cas., 
259;  U.  S.  v.  Henry,  4  Wash.,  428,  26 
Fed.  Cas.,  276;  U.  S.  v.  Keefe,  3  Mason, 
475,  26  Fed.  Cas.,  685;  U.  S.  v.  Law- 
rence, 1  Cranch,  C.  C,  94,  26  Fed.  Cas., 
885;  U.  S.  v.  Lynch,  2  N.  Y.  Leg.  Obs., 
51,    26    Fed.    Cas.,    1033;    U.    S.    v.    Mat- 


thews, 2  Sumn.,  470,  26  Fed.  Cas.,  1207; 
U.  S.  v.  Morrison,  1  Sumn.,  448,  26  Fed. 
Cas.,   1351;   U.    S.   v.   Nye,   2    Curtis,   225, 

27  Fed.  Cas.,  210;  U.  S.  v.  Roberts,  2  N. 
Y.  Leg.  Obs.,  99,  27  Fed.  Cas.,  822;  U. 
S.  v.  Rogers,  3  Sumn.,  342,  27  Fed.  Cas.. 
890;  U.  S.  v.  Savage,  5  Mason,  460,  27 
Fed.  Cas.,  966;  U.  S.  v.  Seagrist,  4 
Blatch.,  420,  27  Fed.  Cas.,  1002;  U.  S. 
v.  Sharp,  Pet.  C.  C,  118,  27  Fed.  Cas.. 
1041;  U.  S.  v.  Smith,  1  Mason.  147,  27 
Fed.  Cas.,  1166;  U.  S.  v.  Smith,  3  Wash., 
78,  27  Fed.  Cas.,  1246;  U.  S.  v.  Staly,  1 
Wood  &  M.,  338,  27  Fed.  Cas.,  1290;  U. 
S.  v.  Stevens,  4  Wash.,  547,  27  Fed.  Cas.. 
1335,    U.    S.   v.   Thompson,    1    Sumn.,    168, 

28  Fed.  Cas.,  102;  U.  S.  v.  Winn,  3 
Sumn.,  209,  28  Fed.  Cas.,  733;  U.  S.  v. 
Stone,  8  Fed.  Rep.,  232;  U.  S.  v.  Huff, 
13  Fed.  Rep.,  630. 


§  293.  Revolt  and  mutiny  on  shipboard. — Whoever, 
being  of  the  crew  of  a  vessel  of  the  United  States,  on  the 
high  seas,  or  on  any  other  waters  within  the  admiralty 
and  maritime  jurisdiction  of  the  United  States,  unlaw- 


Piracy  and  other  Offenses  upon  the  Seas.      883 

fully  and  with  force,  or  by  fraud,  or  intimidation,  usurps 
the  command  of  such  vessel  from  the  master  or  other 
lawful  officer  in  command  thereof,  or  deprives  hirn  of  au- 
thority and  command  on  board,  or  resists  or  prevents  him 
in  the  free  and  lawful  exercise  thereof,  or  transfers  such 
authority  and  command  to  another  not  lawfully  entitled 
thereto,  is  guilty  of  a  revolt  and  mutiny,  and  shall  be 
fined  not  more  than  two  thousand  dollars  and  imprisoned 
not  more  than  ten  years.     (R.  S.,  s.  5360.) 

U.   S.  v.   Borden  Sprague,   374,   24   Fed.  v.    Haskell,    4   Wash.,    402,    26    Fed.    Cas., 

Cas.,  1202;  U.  S.  v.  Forbes,  Crabbe,  S58,  207;    U.    S.    v.    Peterson,    1    Wood   &    M., 

25    Fed.    Cas.,    1141;    U.    S.   v.   C.ivings,    1  305,  27   Fed.   Cas.,    515. 
Sprague,    75,   25    Fed.    Cas.,    1331;    U.    S. 

§  294.  Seaman  laying  violent  hands  on  his  command- 
er.— Whoever,  being  a  seaman,  lays  violent  hands  upon 
his  commander,  thereby  to  hinder  and  prevent  his  fight- 
ing in  defense  of  his  vessel  or  the  goods  intrusted  to  him, 
is  a  pirate,  and  shall  be  imprisoned  for  life.  (R.  S.,  s. 
5369.  15  Jan.,  1897,  29  Stat.  L.,  487,  c.  29,  s.  2;  2  Supp., 
538.) 

U.  S.  v.  Kessler,  1  Baldw.,  15,  26  Fed. 
Cas.,    766. 

§  295.  Abandonment  of  mariners  in  foreign  ports. — 
Whoever,  being  master  or  commander  of  a  vessel  of  the 
United  States,  while  aboard,  maliciously  and  without 
justifiable  cause  forces  any  officer  or  mariner  of  such  ves- 
sel on  shore,  in  order  to  leave  him  behind  in  any  foreign 
port  or  place,  or  refuses  to  bring  home  again  all  such  offi- 
cers and  mariners  of  such  vessel  whom  he  carried  out 
with  him,  as  are  in  a  condition  to  return  and  willing  to 
return,  when  he  is  ready  to  proceed  on  his  homeward  voy- 
age, shall  be  fined  not  more  than  five  hundred  dollars, 
or  imprisoned  not  more  than  six  months,  or  both.  (R, 
S.,  s.  5363.) 

Nieto    v.    Clark,    1    Cliff,    145,    18    Fed.  Riddle,   4  Wash.,  644,  27  Fed.   Cas.,   809; 

Cas.,   236;   U.   S.  v.   Coffin,   1    Sumn.,   394,  U.    S.  v.   Ruggles,   5   Mason,   192,  27,   Fed. 

25    Fed.    Cas.,    485;    U.    S.    v.    Netcher,    1  Cas.,  912;    Chinise  laborers,   13   Fed.   Rep., 

Story,    307,    27    Fed.    Cas.,    89;    U.    S.    v.  291. 

§  296.  Conspiracy  to  cast  away  vessel. — Whoever,  on 
the  high  seas,  or  within  the  United  States,  wilfully  and 
corruptly  conspires,  combines,  and  confederates  with  any 
other  person,  such  other  person  being  either  within  or 
without  the  United  States,  to  cast  away  or  otherwise  de- 
stroy any  vessel,  with  intent  to  injure  any  person  that 


884  Federal  Criminal  Law  Procedure. 

may  have  underwritten  or  may  thereafter  underwrite  any 
policy  of  insurance  thereon  or  on  goods  on  board  there- 
of, or  with  intent  to  injure  any  person  that  has  lent  or  ad- 
vanced, or  may  lend  or  advance,  any  money  on  such  ves- 
sel on  bottomry  or  respondentia;  or  whoever,  within  the 
United  States,  builds,  or  fits  out,  or  aids  in  building  or 
fitting  out,  any  vessel  with  intent  that  the  same  be  cast 
away  or  destroyed,  with  the  intent  hereinbefore  men- 
tioned, shall  be  fined  not  more  than  ten  thousand  dollars 
and  imprisoned  not  more  than  ten  years.     (R.  S.,  s.  5364.) 

U.  S.  v.  Cole,  5  McLean,  513,  25  Fed. 
Cas.,  493;  U.  S.  v.  Hand,  6  McLean,  274, 
26   Fed.   Cas.,   102. 

§  297.  Plundering  vessel  in  distress,  etc. — Whoever 
plunders,  steals,  or  destroys  any  money,  goods,  merchan- 
dise, or  other  effects,  from  or  belonging  to  any  vessel  in 
distress,  or  wrecked,  lost,  stranded,  or  cast  away,  upon 
the  sea,  or  upon  any  reef,  shoal,  bank  or  rocks  of  the  sea, 
or  in  any  other  place  within  the  admiralty  and  maritime 
jurisdiction  of  the  United  States,  shall  be  fined  not  more 
than  five  thousand  dollars  and  imprisoned  not  more  than 
ten  years;  and  whoever  willfully  obstructs  the  escape  of 
any  person  endeavoring  to  save  his  life  from  such  ves- 
sel, or  the  wreck  thereof;  or  whoever  holds  out  or  shows 
any  false  light,  or  extinguishes  any  true  light,  with  in- 
tent to  bring  any  vessel  sailing  upon  the  sea  into  danger, 
or  distress,  or  shipwreck,  shall  be  imprisoned  not  less 
than  ten  years  and  may  be  imprisoned  for  life.  (R.  S., 
s.  5358.) 

U.    S.    v.    Coombs,    12    Pet.,    72;    U.    S.  640,  27  Fed.  Cas.,  1132;  U.  S.  v.  Lauche, 

v.  Kessler,  Baldw.,  15,  26  Fed.  Cas.,  766;  7  Fed.   Rep.,  715;  U.   S.  v.   Stone,  8  Fed. 

U.   S.  v.   Pitman.   1   Sprague,   196,  27  Fed.  Rep.,  232. 
Cas.,    540;    U.    S.    v.    Smiley,    6    Sawyer, 

§  298.  Attacking  vessel  with  intent  to  plunder. — 
Whoever,  upon  the  high  seas  or  on  any  other  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States,  by  surprise  or  by  open  force,  maliciously 
attacks  or  sets  upon  any  vessel  belonging  to  another,  with 
an  intent  unlawfully  to  plunder  the  same,  or  to  despoil 
any  owner  thereof  of  any  moneys,  goods,  or  merchandise 
laden  on  board  thereof,  shall  be  fined  not  more  than  five 
thousand  dollars  and  imprisoned  not  more  than  ten  vears. 
(R.  S.,  s.  5361.) 

U.   S.  v.   Stone,   8  Fed.   Rep.,  232. 


Piracy  and  other  Offenses  upon  the  Seas.      885 

§  299.  Breaking  and  entering  vessel,  etc. — Whoever, 
upon  the  high  seas  or  on  any  other  waters  within  the  ad- 
miralty and  maritime  jurisdiction  of  the  United  States, 
and  out  of  the  jurisdiction  of  any  particular  State,  breaks 
or  enters  any  vessel,  with  intent  to  commit  any  felony,  or 
maliciously  cuts,  spoils  or  destroys  any  cordage,  cable, 
buoys,  buoy  rope,  head  fast,  or  other  fast,  fixed  to  the 
anchor  or  moorings  belonging  to  any  vessel,  shall  be  fined 
not  more  than  one  thousand  dollars  and  imprisoned  not 
more  than  five  years.    (R.  S.,  s.  5362.) 

§  300.  Owner  destroying  vessel  at  sea. — "Whoever, 
upon  the  high  seas  or  on  any  other  waters  within  the  ad- 
miralty an  maritime  jurisdiction  of  the  United  States, 
willfully  and  corruptly  casts  away  or  otherwise  destroys 
any  vessel,  of  which  he  is  owner,  in  whole  or  in  part,  with 
intent  to  prejudice  any  person  that  may  underwrite  any 
policy  of  insurance  thereon,  or  any  merchant  that  may 
have  goods  threon,  or  any  other  owner  of  such  vessel 
shall  be  imprisoned  for  life  or  for  any  term  of  years.  (R. 
S.,  s.  5365.  6  Aug.,  1894,  28  Stat.  L.,*233,  c.  227;  2  Supp., 
225.) 

U.  S.  v.  Johns,  4  Dall,  412,  1  Wash..  26  Fed.  Cas..  567;  U.  S.  v.  Vanranst, 
363;  U.  S.  v.  Amedy,  11  Wheat.,  329;  3  Wash.,  146;  U.  S.  v.  Wilson,  3  Blatch., 
U.  S.  v.  Jacobson,  1  Brun.  Col.  Cas.,  410,        435. 

§  301.  Other  persons  destroying  or  attempting  to  de- 
stroy vessel  at  sea. — Whoever,  not  being  an  owner,  upon 
the  high  seas  or  on  any  other  waters  within  the  admiral- 
ty and  maritime  jurisdiction  of  the  United  States,  will- 
fully and  corruptly  casts  away  or  otherwise  destroys  any 
vessel  of  the  United  States  to  which  he  belongs,  or,  will- 
fully, with  intent  to  destroy  the  same,  sets  fire  to  any 
such  vessel,  or  otherwise,  attempts  the  destruction  there- 
of, shall  be  imprisoned  not  more  than  ten  vears.  (R.  S., 
ss.  5366,  5367.  6  Aug.,  1894,  28  Stat.  L.,  233,  c.  227,  s.  2; 
2  Supp.,  225.) 

U.    S.    v.    Vanranst,    3    Wash.,    146,    28  435.  28  Fed.  Cas..  718;  U.   S.  v.  McAvjy, 
Fed.  Cas.,  360;  U.  S.  v.  Wilson.  3  Blatch..      4  Blatch.,   418,   26   Fed.   Cas.,    1044. 

§  302.  Robbery  on  shore  by  crew  of  piratical  vessel. — 
Whoever,  being,  engaged  in  any  piratical  cruise,  or  en- 
terprise, or  being  of  the  crew  of  any  piratical  vessel,  lan^ 
from  such  vessel,  and  on  shore  commits  robbery,  is  a  pi- 
rate, and  shall  be  imprisoned  for  life.  (R.  S.,  s.  5371.  If 
Jan.,  1897,  29  Stat.  L.,  487,  c.  29,  s.  2;  2  Supp.,  538.) 


K 


886  Federal  Criminal  Law  Procedure. 

§  303.  Arming  vessel  to  cruise  against  citizens  of  the 
United  States. — Whoever,  being  a  citizen  of  the  United 
States,  without  the  limits  thereof,  fits  out  and  arms,  or 
attempts  to  fit  out  and  arm,  or  procures  to  be  fitted  out 
and  armed,  or  knowingly  aids  or  is  concerned  in  furnish- 
ing, fitting  out,  or  arming,  any  private  vessel  of  war  or 
privateer,  with  intent  that  such  vessel  shall  be  employed 
to  cruise  or  commit  hostilities  upon  the  citizens  of  the 
United  States,  or  their  property,  or  whoever  takes  com- 
mand of  or  enters  on  board  of  any  such  vessel,  for  such 
intent,  or  who  purchases  any  interest  in  any  such  vessel 
with  a  view  to  share  in  the  profits  thereof,  shall  be  fined 
not  more  than  ten  thousand  dollars  and  imprisoned  no4 
more  than  ten  years.  The  trial  for  such  offense,  if  com- 
mitted without  the  limits  of  the  United  States,  shall  be 
in  the  district  in  which  the  offender  shali  be  apprehended 
or  first  brought.     (R.  S.,  s.  5284.) 

U.  S.  v.  Howard,  3  Wash.,  340,  26  Fed. 
Cas.,  390. 

§  304.  Piracy  under  color  of  a  foreign  commission. — 
Whoever,  being  a  citizen  of  the  United  States,  commits 
any  murder  or  robbery,  or  any  act  of  hostility  against  the 
United  States,  or  against  any  citizen  thereof,  on  the  high 
seas,  under  color  of  any  commission  from  any  foreign 
prince,  or  state,  or  on  pretense  of  authority  from  any  per- 
son, is,  notwithstanding  the  pretense  of  such  authority, 
a  pirate,  and  shall  be  imprisoned  for  life.  (R.  S.,  s.  5373. 
15  Jan.,  1897,  29  Stat.  L.,  487,  c.  29,  s.  2;  2  Supp.,  538.) 

U.   S.  v.  Palmer,  3  Wheat.,  610;  U.   S.        489,   26   Fed.   Cas.,  440;   U.   S.   v.   Terrel, 
v.   Baker,   5  Blatch.,  6,  24  Fed.  Cas.,   962;         Hernpst.,   413,    1    Fed.   Cas.,   999. 
U.    S.    v.    Hutchings,    1    Brun.    Col.    Cas., 

§  305.  Piracy  by  subjects  or  citizens  of  a  foreign  state. 
— Whoever,  being  a  citizen  or  subject  of  any  foreign 
state,  is  found  and  taken  on  the  sea  making  war  upon  the 
United  States,  or  cruising  against  the  vessels  and  prop- 
erty thereof,  or  of  the  citizens  of  the  same,  contrary  to 
the  provisions  of  any  treaty  existing  between  the  United 
States  and  the  state  of  which  the  offender  is  a  citizen  or 
subject,  when  by  such  treaty  such  acts  are  declared  to  be 
piracy,  is  guilty  of  piracv,  and  shall  be  imprisoned  for 
life.  *(R.  S.,  s.  5374.  15  Jan.,  1897,  29  Stat.  L.,  487,  c.  29, 
s.  2;  2  Supp.,  538.) 


Piracy  and  other  Offenses  upon  the  Seas.      887 

§  306.  Running  away  with  or  yielding  up  vessel  or 
cargo. — Whoever,  being  a  captain  or  other  officer  or 
mariner  of  a  vessel  upon  the  high  seas  or  on  any  other 
waters  within  the  admiralty  or  maritime  jurisdiction  of 
the  United  States,  piratically  or  feloniously  runs  away 
with  such  vessel,  or  with  any  goods  or  merchandise  there- 
of, to  the  value  of  fifty  dollars,  or  who  yields  up  such  ves- 
sel voluntarily  to  any  pirate,  shall  be  fined  not  more  than 
ten  thousand  dollars,  or  imprisoned  not  more  than  ten 
years,  or  both.    R.  S.,  s.  5383.) 

U.  S.  v.  Haskell,  4  Wash.,  402,  26  Fed.        26    Fed.    Cas.,    766;     U.     S.    v.     Tully,    1 
Cas.,   207;   U.    S.  v.   Kessler,   Baldw.,    15.        Call.,  247,  28  Fed.  Cas.,  226. 

§  307.  Confederating,  etc.,  with  pirates. — Whoever 
attempts  or  endeavors  to  corrupt  any  commander,  mas- 
ter, officer,  or  mariner  to  yield  up  or  to  run  away  with 
any  vessel,  or  with  any  goods,  wares,  or  merchandise,  or 
to  turn  pirate,  or  to  go  over  to  or  confederate  with  pi- 
rates, or  in  any  wise  to  trade  with  any  pirate,  knowing 
him  to  be  such,  or  furnishes  such  pirate  with  any  am- 
munition, stores,  or  provisions  of  any  kind,  or  fits  out  any 
vessel  knowingly  and,  with  a  design  to  trade  with,  sup- 
ply, or  correspond  with  any  pirate  or  robber  upon  the 
seas;  or  whoever  consults,  combines,  confederates,  or  cor- 
responds with  any  pirate  or  robber  upon  the  seas,  know- 
ing him  to  be  guilty  of  any  piracy  or  robbery;  or  who- 
ever, being  a  seaman,  confines  the  master  of  any  vessel, 
shall  be  fined  not  more  than  one  thousand  dollars  and  im- 
prisoned not  more  than  three  years.     (R.  S.,  s.  5384.) 

U.    S.    v.    Howard,    3    Wash.,    340,    26 
Fed.  Cas.,  390. 

§  308.  Sale  of  arms  and  intoxicants  forbidden  in  the 
Pacific  islands. — Whoever,  being  subject  to  the  author- 
ity of  the  United  States,  shall  give,  sell,  or  otherwise  sup- 
ply any  arms,  ammunition,  explosive  substance,  intoxi- 
cating liquor,  or  opium  to  any  aboriginal  native  of  any 
of  the  Pacific  islands  lying  within  the  twentieth  parallel 
of  north  latitude  and  the  fortieth  parallel  of  south  lat- 
tude,  and  the  one  hundred  and  twentieth  meridian  of 
longitude  west  and  one  hundred  and  twentieth  meridian  of 
longitude  east  of  Greenwich,  not  being  in  the  possession 
or  under  the  protection  of  any  civilized  power,  shall  be 
fined  not  more  than  fifty  dollars,  or  imprisoned  not  mo~*e 


888  Federal  Criminal  Law  Procedure. 

than  three  months,  or  both.  In  addition  to  such  punish- 
ment, all  articles  of  a  similar  nature  to  those  in  respect 
to  which  an  offense  has  been  committed,  found  in  the 
possession  of  the  offender,  may  be  declared  forfeited.  If 
it  shall  appear  to  the  court  that  such  opium,  wine,  or 
spirits  have  been  given  bona  fide  for  medical  purposes, 
it  shall  be  lawful  for  the  court  to  dismiss  the  charge.  (14 
Feb.,  1902,  32  Stat.  L.,  33  c.  18,  ss.  1,  2.) 

§  309.  Offenses  under  preceding  section  deemed  or 
high  seas. — All  offenses  against  the  provisions  of  the 
section  last  preceding,  committed  on  any  of  said  island s 
or  on  the  waters,  rocks,  or  keys  adjacent  thereto,  shall  be 
deemed  committed  on  the  high  seas  on  board  a  merchant 
ship  or  vessel  belonging  to  the  United  States,  and  the 
courts  of  the  United  States  shall  have  jurisdiction  ac- 
cordingly.   (14  Feb.,  1902,  32  Stat.  L.,  33,  c.  18,  s.  3.) 

§  310.  "Vessels  of  the  United  States"  defined.— The 
words  "vessel  of  the  United  States,"  wherever  they  oc- 
cur in  this  chapter,  shall  be  construed  to  mean  a  vessel 
belonging  in  whole  or  in  part  to  the  United  States,  or  any 
citizen  thereof,  or  any  corporation  created  by  or  under 
the  laws  of  the  United  States,  or  of  any  State,  Territory, 
or  District  thereof. 


CHAPTER       THIRTEEN. 

CERTAIN  OFFENSES  IN  THE   TERRITORIES. 

§  311.  Places  within  which  sections  of  this  chapter  shall  apply. 

312.  Circulation  of  obscene  literature;   promoting  abortion. 

313.  Polygamy. 

314.  Unlawful  cohabitation. 

315.  Joinder  of  counts. 

316.  Adultery. 

317.  Incest. 

318.  Fornication. 

319.  Certificates  of  marriage;    penalty  for  failure  to  record. 

320.  Prize  fights,  bull  fights,  etc. 

321.  Definition  of  "pugilistic  encounter." 

322.  Train  robberies  in  Territories,  etc. 

§  311.  Places  within  which  sections  of  this  chapter 
shall  apply. — Except  as  otherwise  expressly  provided, 
the  offenses  defined  in  this  chapter  shall  be  punished  as 
hereinafter  provided,  when  committed  within  any  Ter- 
ritory or  District,  or  within  or  upon  any  place  within  the 
exclusive  jurisdiction  of  the  United  States, 

§  312.  Circulation  of  obscene  literature;  promoting 
abortion;  how  punished. — Whoever  shall  sell,  lend,  give 
away,  or  in  any  manner  exhibit,  or  offer  to  sell,  lend,  give 
away,  or  in  any  manner  exhibit,  or  shall  otherwise  pub- 
lish or  offer  to  publish  in  any  manner,  or  shall  have  in  his 
possession  for  any  such  purpose,  any  obscene  book, 
pamphlet,  paper,  writing,  advertisement,  circular,  print, 
picture  drawing,  or  other  representation,  figure,  or  image 
on  or  of  paper  or  other  material,  or  any  cast,  instrument, 
or  other  article  of  an  immoral  nature,  or  any  drug  or  medi- 
cine, or  any  article  whatever,  for  the  prevention  of  con- 
ception, or  for  causing  unlawful  abortion,  or  shall  adver- 
tise the  same  for  sale,  or  shall  write  or  print,  or  cause  to 
be  written  or  printed,  any  card,  circular,  book,  pamphlet, 
advertisement,  or  notice  of  any  kind,  stating  when, 
where,  how,  or  of  whom,  or  by  what  means,  any  of  the 
articles  above  mentioned  can  be  purchased  or  obtained, 
or  shall  manufacture,  draw,  or  print,  or  in  any  wise  make 
any  of  such  articles,  shall  be  fined  not  more  than  two 

(889) 


890  Federal  Criminal  Law  Procedure. 

thousand  dollars,  or  imprisoned  not  more  than  five  years, 
or  both.    (R.  S.,  s.  5389.) 

I".    S.   v.   Williams,   3   Fed.   Rep.,   484. 

§  313.  Polygamy. — Every  person  who  has  a  husband 
or  wife  living,  who  marries  another,  whether  married  or 
single,  and  any  man  who  simultaneously,  or  on  the  same 
day,  marries  more  than  one  woman,  is  guilty  of  poly- 
gamy, and  shall  be  fined  not  more  than  five  hundred  dol- 
lars and  imprisoned  not  more  than  five  years.  But  this 
section  shall  not  extend  to  any  person  by  reason  of  any 
former  marriage  whose  husband  or  wife  by  such  mar- 
riage shall  have  been  absent  for  five  successive  years,  and 
is  not  known  to  such  person  to  be  living,  and  is  believed 
by  such  person  to  be  dead,  nor  to  any  person  by  reason  of 
any  former  marriage  which  shall  have  been  dissolved  by  a 
valid  decree  of  a  competent  court,  nor  to  any  person  by 
reason  of  any  former  marriage  which  shall  have  been  pro- 
nounced void  by  a  valid  decree  of  a  competent  court,  on 
the  ground  of  nullity  of  the  marriage  contract.  (R.  S., 
s.  5352.  22  Mar.,  1882,  22  Stat,  L.,  30,  c.  47,  s.  1;  1  Supp., 
331.) 

Cannon  v.  U.  S.,  116  U.  S.,  SS;  Ex 
parte  Snow,  120  U.  S.,  274;  U.  S.  v. 
Higginson,    46    Fed.    Rep.,    750. 

§  314.  Unlawful  cohabitation. — If  any  male  person 
cohabits  with  more  than  one  woman,  he  shall  be  fined 
not  more  than  three  hundred  dollars,  or  imprisoned  not 
more  than  six  months,  or  both.  (22  Mar.,  1882,  22  Stat. 
L.,  31,  c.  47,  s.  3;  1  Supp.,  332.) 

Cannon  v.  U.  S..  116  U.  S.,  55;  Ex 
parte  Snow,  120  U.  S.,  274;  U.  S.  v. 
Higginson,  46  Fed.  Rep.,  750. 

§  315.  Joinder  of  counts. — Counts  for  any  or  all  of 
the  offenses  named  in  the  two  sections  last  preceding  may 
be  joined  in  the  same  information  or  indictment.  (22 
Mar.,  1882,  22  Stat.  L.,  31,  c.  47,  s.  4;  1  Supp.,  331.) 

§  316.  Adultery. — Whoever  shall  commit  adultery 
shall  be  imprisoned  not  more  than  three  years;  and  when 
the  act  is  committed  between  a  married  woman  and  a  man 
who  is  unmarried,  both  parties  to  such  act  shall  be 
deemed  guilty  of  adultery;  and  when  such  act  is  commit- 
ted between  a  married  man  and  a  woman  who  is  unmar- 
ried, tli<'  mail  shall  be  deemed  guilty  of  adultery.  (3  Mar., 


Certain  Offenses  in  the  Territories.  891 

1887,  24  Stat.  L.,  635,  c.  397,  s.  3;  1  Supp.,  568.) 

§  317.  Incest. — Whoever  being  related  to  another 
person  within  and  not  including  the  fourth  degree  of  con- 
sanguinity computed  according  to  the  rules  of  the  civil 
law  shall  marry  or  cohabit  with,  or  have  sexual  inter- 
course with  such  other  so  related  person,  knowing  her  or 
him  to  be  within  said  degree  of  relationship,  shall  be 
deemed  guilty  of  incest,  and  shall  be  imprisoned  not  more 
than  fifteen  years.  (3  Mar.,  1887,  24  Stat.  L.,  635,  c.  397, 
s.  4;  1  Supp.,  568.) 

Re  Nelson,  69  Fed.  Rep.,  712. 

§  318.  Fornification. — If  any  unmarried  man  or  wo- 
man commits  fornification  each  shall  be  fined  not  more 
than  one  hundred  dollars,  or  imprisoned  not  more  than 
six  months.  (3  Mar.,  1887,  24  Stat.  L.,  636,  c.  397,  s.  5;  1 
Supp.,  568.) 

§  319.  Certificates  of  marriage;  penalty  for  failure  to 
record. — Every  ceremony  of  marriage,  or  in  the  nature 
of  a  marriage  ceremony  of  any  kind,  whether  either  or 
both  or  more  of  the  parties  to  such  ceremony  be  lawfully 
competent  to  be  the  subjects  of  such  marriage  or  cere- 
mony or  not,  shall  be  certified  by  a  certificate  stating  the 
fact  and  nature  of  such  ceremony,  the  full  name  of  each 
of  the  parties  concerned,  and  the  full  name  of  every  offi- 
cer, priest,  and  person,  by  whatever  style  or  designation 
called  or  known,  in  any  way  taking  part  in  the  perform- 
ance of  such  ceremony,  which  certificate  shall  be  drawn  up 
and  signed  by  the  parties  to  such  ceremony  and  by  every 
officer,  priest,  and  person  taking  part  in  the  performance 
of  such  ceremony,  and  shall  be  by  the  officer,  priest,  or 
other  person  solemnizing  such  marriage  or  ceremony  filed 
in  the  office  of  the  probate  court,  or,  if  there  be  none,  in 
the  office  of  the  court  having  probate  powers  in  the  coun- 
ty or  district  in  which  such  ceremony  shall  take  place, 
for  record,  and  shall  be  immediately  recorded,  and  be  at 
all  times  subject  to  the  inspection  as  other  public  records. 
Such  certificate  or  the  record  thereof,  or  a  duly  certified 
copy  of  such  record,  shall  be  prima  facie  evidence  of  the 
facts  required  by  this  section  to  be  stated  therein  in  any 
proceeding,  civil  or  criminal,  in  which  the  matter  shall 
be  drawn  in  question.    But  nothing  in  this  section  shall 


892  Federal  Criminal  Law  Procedure. 

be  held  to  prevent  the  proof  of  marriages,  whether  law- 
ful or  unlawful,  by  any  evidence  otherwise  legally  ad- 
missible for  that  purpose.  Whoever  shall  willfully  vio- 
late any  provision  of  this  section  shall  be  fined  not  more 
than  one  thousand  dollars,  or  imprisoned  not  more  than 
two  years,  or  both.  The  provisions  of  this  section  shall 
apply  only  within  the  Territories  of  the  United  States. 
(3  Mar.,  1887,  24  Stat.  L.,  636,  c.  397,  ss.  9,  10;  1  Supp., 
568.) 

§  320.  Prize  fights,  bull  fights,  etc. — Whoever  shall 
voluntarily  engage  in  a  pugilistic  encounter  between  man 
and  man  or  a  fight  between  a  man  and  a  bull  or  any  other 
or  animal  for  money  or  for  other  thing  of  value, 
or  for  any  championship,  or  upon  the  result  of  which 
any  money  or  anything  of  value  is  bet  or  wagered, 
or  to  see  which  any  admission  fee  is  directly  or  in- 
directly charged,  shall  be  imprisoned  not  more  than  five 
years.  The  provisions  of  this  section  shall  apply  only 
within  the  Territories  of  the  United  States  and  the  Dis- 
trict of  Columbia.  (7  Feb.,  1896,  29  Stat.  L.,  5,  c.  12;  2 
Supp.,  446.) 

§  321.  "Pugilistic  encounter"  defined. — By  the  term 
"pugilistic  encounter,"  as  used  in  the  section  last  pre- 
ceding, is  meant  any  voluntary  fight  by  blows  by  means 
of  fists  or  otherwise,  whether  with  or  without  gloves,  be- 
tween two  or  more  men,  for  money  or  for  a  prize  of  any 
character,  or  for  any  other  thing  of  value,  or  for  any 
championship,  or  upon  the  result  of  which  any  money 
or  anything  of  value  is  bet  or  wagered,  or  to  see  which 
anv  admission  fee  is  directly  or  indirectly  charged.  (7 
Feb.,  1896,  29  Stat.  L.,  5,c.  12;  2  Supp.,  446.) 

§  322.  Train  robberies  in  Territories,  etc. — Whoever 
shall  willfully  and  maliciously  trespass  upon  or  enter  up- 
on any  railroad  train,  railroad  car,  or  railroad  locomo- 
tive, with  the  intent  to  commit  murder,  or  robbery,  shall 
be  fined  not  more  than  five  thousand  dollars,  or  impris- 
oned not  more  than  twenty  years,  or  both.  Whoever 
shall  willfully  and  maliciously  trespass  upon  or  enter  up- 
on any  railroad  train,  railroad  car,  or  railroad  locomo- 
tive, with  intent  to  commit  any  unlawful  violence  upon 
or  against  any  passenger  on  said  train,  or  car,  or  upon 


Certain  Offenses  in  the  Territories.  893 

or  against  any  engineer,  conductor,  fireman,  brakeman, 
or  any  officer  or  employee  connected  with  said  locomo- 
tive, train,  or  car,  or  upon  or  against  any  express  mes- 
senger or  mail  agent  on  said  train  or  in  any  car  thereof, 
or  to  commit  any  crime  or  offense  against  any  person  or 
property  thereon,  shall  be  fined  not  more  than  one  thou- 
sand dollars,  or  imprisoned  not  more  than  one  year,  or 
both.  Whoever  shall  counsel,  aid,  abet,  or  assist  in  the 
perpetration  of  any  of  the  offenses  set  forth  in  this  sec- 
tion shall  be  deemed  to  be  a  principal  therein.  Upon  the 
trial  of  any  person  charged  with  any  offense  set  forth  in 
this  section,  it  shall  not  be  necessary  to  set  forth  or  prove 
the  particular  person  against  whom  it  was  intended  to 
commit  the  offense,  or  that  it  was  intended  to  commit 
such  offense  against  any  particular  person.  (1  July, 
1902,  32  Stat.  L.,  727,  c.  1376.) 


CHAPTER       FOURTEEN. 

GENERAL  AND  SPECIAL  PROVISIONS. 

§  323.     Punishment  of  death  by  hanging. 

324.  No   conviction    to   work    corruption   of    blood    or    forfeiture    of 

estate. 

325.  Whipping  and  the  pillory  abolished. 

326.  Jurisdiction  of  State  courts. 

327.  Pardoning  power. 

328.  Indians  committing  certain  crimes;    how  punished. 

329.  Crimes  committed  on  Indian  reservations  in  South  Dakota. 

330.  Qualified  verdicts  in  certain  cases. 

331.  Body   of   executed    offender    may   be    delivered   to   surgeon    for 

dissection. 

332.  Who  are  principals. 

333.  Punishment  of  accessories. 

334.  Accessories  to  robbery  or  piracy. 

335.  Felonies  and  misdemeanors. 

336.  Murder  and  manslaughter;   place  where  crime  deemed  to  have 

been  committed. 

337.  Construction  of  certain  words. 

338.  Ommission    of    words    "hard    labor"    not    to    deprive    court    of 

power  to  impose. 

339.  Arrangement  and  classification  of  sections. 

340.  Jurisdiction  of  circuit  and  district  courts. 

§  323.  Punishment  of  death  by  hanging. — The  man- 
ner of  inflicting  the  punishment  of  death  shall  be  by 
hanging.     (R.  S.,  s.  5325.) 

§  324.  No  conviction  to  work  corruption  of  blood  or 
forfeiture  of  estate. — No  conviction  or  judgment  shall 
work  corruption  of  blood  of  anv  forfeiture  of  estate.  (R. 
S.,  s.  5326.) 

U.   S.  v.  Coppersmith,   4   Fed.   Rep.,   198. 

§  325.  Whipping  and  the  pillory  abolished. — The 
punishment  of  whipping  and  of  standing  in  the  pillory 
shall  not  be  inflicted.     (R.  S.,  s.  5327.) 

§  326.  Jurisdiction  of  State  Courts. — Nothing  in  this 
Title  shall  be  held  to  take  away  or  impair  the  jurisdic- 
tion of  the  courts  of  the  several  States  under  the  laws 
thereof.    (R.  S.,  s.  5328.) 

Cross    v.    North     Carolina,     132    U.     S..  657;    Re   Miller   42   Fed.   Rep.,   307;    U.    S. 

131;    Re    I.oncv,    134    U.    S.,    372,   38    Fed.  v.    Gibson,    47    Fed.    Rep..    833:    Ex    parte 

Rep.,  101;   Fitzgerald  v.  Green,  134  U.  S.,  Geisler,   50   Fed.   Rep.,   411;   Re  Welch.   57 

377;   Pettibone  v.    U.   S..    148    lT.   S.,   197;  Fed.   Hep.,  576;   Re  Waite,   81    Fed.  Rep.. 

Re  Thomas,  173  U.  S.,  276,  87  Fed.  Rep.,  359;  Ex  parte  Ballinger,  88  Fed.  Rep.,  71. 
453;    Ex    parte    Houghton,    7    Fed.    Rep.. 

(894) 


General  and  Special  Provisions.  895 

§  327.  Pardoning  power. — Whenever,  by  the  judg- 
ment of  any  court  or  judicial  officer  of  the  United  States, 
in  any  criminal  proceedings,  any  person  is  sentenced  to 
two  kinds  of  punishment,  the  one  pecuniary  and  the  other 
corporal,  the  President  shall  have  full  discretionary  pow- 
er to  pardon  or  remit,  in  whole  or  in  part,  either  one  of 
the  two  kinds,  without,  in  any  manner,  impairing  the 
legal  validity  of  the  other  kind,  or  of  any  portion  of  either 
kind,  not  pardoned  or  remitted.     (R.  S.,  s.  5330.) 

Knote  v.    U.    S.,   95    U.    S.,    149:    8   A.        Op.,    1;    19   A.   G.    Op.,    377,    476;    20    A. 
G.  Op.,  281;  9  A.  G.  Op.,  478;   11  A.  G.        G.  Op.,  330,  668. 
Op^    35;    14    A.    G.    Op.,    124;    16    A.    G. 

§  328.  Indians  committing  certain  crimes;  how  pun- 
ished.— All  Indians  committing  against  the  person  or 
property  of  another  Indian  or  other  person  any  of  the  fol- 
lowing crimes,  namely — murder,  manslaughter,  rape,  as- 
sault with  intent  to  kill,  assault  with  a  dangerous  wea- 
pon, arson,  burglary,  and  larceny,  within  any  Territory 
of  the  United  States,  and  either  within  or  without  an  In- 
dian reservation,  shall  be  subject  therefor  to  the  laws  of 
such  Territory  relating  to  said  crimes,  and  shall  be  tried 
therefor  in  the  same  courts  and  in  the  same  manner  and 
shall  be  subject  to  the  same  penalties  as  are  all  other  per- 
sons charged  with  the  commission  of  said  crimes,  respect- 
ively; and  the  said  courts  are  hereby  given  jurisdiction 
in  all  such  cases.  And  all  such  Indians  committing  any 
of  the  above  named  crimes  against  the  person  or  prop- 
erty of  another  Indian  or  other  person  within  the  bound- 
aries of  any  State  of  the  United  States,  and  within  the 
limits  of  any  Indian  reservation,  shall  be  subject  to  the 
same  laws,  tried  in  the  same  courts  and  in  the  same  man- 
ner, and  be  subject  to  the  same  penalties  as  are  all  other 
persons  committing  any  of  the  above  crimes  within  the 
exclusive  jurisdiction  of  the  United  States:  Provided, 
That  any  Indian  who  shall  commit  the  offense  of  rape 
upon  any  female  Indian  within  the  limits  of  any  Indian 
reservation  shall  be  imprisoned  at  the  discretion  of  the 
court.  (3  Mar.,  1885,  23  Stat.  L.,  385,  c.  341;  1  Supp.,  482. 
15  Jan.,  1897,  29  Stat.  L.,  487,  c.  29,  s.  5;  2  Supp.,  538.) 

Toy  Toy  v.  Hopkins,  212  U.  S.,  542; 
U.  S.  v.  Celestine,  215  U.  S.,  278;  U.  S. 
v.    Kiya,    126    Fed.    Rep.,    879. 


896  Fedekal  Criminal  Law  Procedure. 

§  329.  Crimes  committed  on  Indian  reservations  in 
South  Dakota. — The  circuit  and  district  courts  of  the 
United  States  for  the  district  of  South  Dakota  shall  have 
jurisdiction  to  hear,  try,  and  determine  all  actions  and 
proceedings  in  which  any  person  shall  be  charged  with 
the  crime  of  murder,  manslaughter,  rape,  assault  with 
intent  to  kill,  assault  with  a  dangerous  weapon,  arson, 
burglary,  or  larceny,  committed  within  the  limits  of  any 
Indian  reservation  in  the  State  of  South  Dakota.  Any 
person  convicted  of  murder,  manslaughter,  rape,  arson, 
or  burglary,  committed  within  the  limits  of  any  such  res- 
ervation, shall  be  subject  to  the  same  punishment  as  is 
imposed  upon  persons  committing  said  crimes  within  the 
exclusive  jurisdiction  of  the  United  States:  Provided, 
That  any  Indian  who  shall  commit  the  crime  of  rape  up- 
on any  female  Indian  within  any  such  reservation  shall 
be  imprisoned  at  the  discretion  of  the  court.  Any  per- 
son convicted  of  the  crime  of  assault  with  intent  to  kill, 
assault  with  a  dangerous  weapon,  or  larceny,  committed 
within  the  limits  of  any  such  reservation,  shall  be  subject 
to  the  same  punishment  as  is  provided  in  cases  of  other 
persons  convicted  of  any  of  said  crimes  under  the  laws 
of  the  State  of  South  Dakota.  This  section  is  passed  in 
pursuance  of  the  cession  of  jurisdiction  contained  in  chap- 
ter one  hundred  and  six,  Laws  of  South  Dakota,  nineteen 
hundred  and  one.  (2  Feb.,  1903,  32  Stat.  L.,  793,  c.  351. 
Laws  of  South  Dakota,  1901,  c.  106.) 

§  330.  Qualified  verdicts  in  certain  cases. — In  all  cases 
where  the  accused  is  found  guilty  of  the  crime  of  murder 
in  the  first  degree,  or  rape,  the  jury  may  qualify  their 
verdict  by  adding  thereto  "without  capital  punishment;" 
and  whenever  the  jury  shall  return  a  verdict  qualified  as 
aforesaid,  the  person  convicted  shall  be  sentenced  to  im- 
prisonment for  life.  (15  Jan.,  1897,  29  Stat.  L.,  487,  c.  29, 
s.  1;  2  Supp.,  538.) 

§  331.  Body  of  executed  offender  may  be  delivered  to 
surgeon  for  dissection. — The  court  before  which  any  per- 
son is  convicted  of  murder  in  the  first  degree,  or  rape, 
may,  in  its  discretion,  add  to  the  judgment  of  death,  that 
the  body  of  the  offender  be  delivered  to  a  surgeon  for  dis- 
section; and  the  marshal  who  executes  such  judgment 


General  and  Special  Provisions.  897 

shall  deliver  the  body,  after  execution,  to  such  surgeon 
as  the  court  may  direct;  and  such  surgeon,  or  some  per- 
son appointed  by  him,  shall  receive  and  take  away  the 
body  at  the  time  of  execution.     (R.  S.,  s.  5340.) 

§  332.  Who  are  principals. — Whoever  directly  com- 
mits any  act  constituting  an  offense  denned  in  any  law 
of  the  United  States,  or  aids,  abets,  counsels,  commands, 
induces,  or  procures  its  commission,  is  a  principal.  (R. 
S.,  ss.  5323,  5427.    Dolan  v.  U.  S.,  133  Fed.  Rep.,  440.) 

§  333.  Punishment  of  accessories. — Whoever,  except 
as  otherwise  expressly  provided  by  law,  being  an  acces- 
sory after  the  fact  to  the  commission  of  any  offense  de- 
fined in  any  law  of  the  United  States,  shall  be  imprisoned 
not  exceeding  one-half  the  longest  term  of  imprisonment, 
or  fined  not  exceeding  one-half  the  largest  fine  prescribed 
for  the  punishment  of  the  principal,  or  both,  if  the  prin- 
cipal is  punishable  by  both  fine  and  imprisonment;  or  if 
the  principal  is  punishable  by  death,  then  an  accessory 
shall  be  imprisoned  not  more  than  ten  years.  (R.  S.,  ss. 
5533,  5534,  5535.) 

§  334.  Accessories  to  robbery  or  piracy. — Whoever, 
without  lawful  authority,  receives  or  takes  into  custody 
any  vessel,  goods,  or  other  property,  feloniously  taken  by 
any  robber  or  pirate  against  the  laws  of  the  United 
States,  knowing  the  same  to  have  been  feloniously  taken, 
and  whoever,  knowing  that  such  pirate  or  robber  has 
done  or  committed  any  such  piracy  or  robbery,  on  the 
land  or  at  sea,  receives,  entertains,  or  conceals  any  such 
pirate  or  robber,  is  an  accessory  after  the  fact  to  such 
robbery  or  piracy,  and  shall  be  imprisoned  not  more  than 
ten  years.     (R.  S.,  s.  5324.) 

Hempst.,  413,  1   Fed.  Cas.,  999. 

§  335.  Felonies  and  misdemeanors.— All  offenses 
which  may  be  punished  by  death,  or  imprisonment  for  a 
term  exceeding  one  year,  shall  be  deemed  felonies.  All 
other  offenses  shall  be  deemed  misdemeanors. 

§  336.  Murder  and  manslaughter;  place  where  crime 
deemed  to  have  been  committed. — In  all  cases  of  mur- 
der or  manslaughter,  the  crime  shall  be  deemed  to  have 
been  committed  at  the  place  where  the  injury  was  in- 

57 


898  Federal  Criminal  Law  Procedure. 

flicted,  or  the  poison  administered,  or  other  means  em- 
ployed which  caused  the  death,  without  regard  to  the 
place  where  the  death  occurs.     (R.  S.,  ss.  5339,  5341.) 

Ball   v.   U.    S.,    140   U.    S.,    136;    U.    S.        Hewecker,    79    Fed.    Rep.,    59;    U.    S.    v. 
v.   McGill,   26    Fed.   Cas.,   1086;   U.    S.   v.        Guiteau,   1    Mackey    (D.   C),   498. 

-  §  337.  Construction  of  words. — Words  used  in  this 
title  in  the  present  tense  include  the  future  as  well  as 
the  present;  words  used  in  the  masculine  gender  include 
the  feminine  and  neuter;  the  singular  number  includes 
the  plural,  and  the  plural  the  singular;  the  word  "per- 
son" and  the  word  "whoever"  include  a  corporation  as 
well  as  a  natural  person;  writing  includes  printing  and 
typewriting,  and  signature  or  subscription  includes  a 
mark  when  the  person  making  the  same  intended  it  as 
such.  The  words  "this  Title,"  wherever  they  occur  here- 
in, shall  be  construed  to  mean  this  act. 

§  338.  Omission  of  words  "hard  labor"  not  to  de- 
prive court  of  power  to  impose. — The  omission  of  the 
words  "hard  labor"  from  the  provisions  prescribing  the 
punishment  in  the  various  sections  of  this  act,  shall  not 
be  construed  as  depriving  the  court  of  the  power  to  im- 
pose hard  labor  as  a  part  of  the  punishment,  in  any  case 
where  such  power  now  exists. 

§  339.  Arrangement  and  classification  of  sections. — 
The  arrangement  and  classification  of  the  several  sec- 
tions of  this  title  have  been  made  for  the  purpose  of  a 
more  convenient  and  orderly  arrangement  of  the  same, 
and  therefore  no  inference  or  presumption  of  a  legisla- 
tive construction  is  to  be  drawn  by  reason  of  the  chap- 
ters under  which  any  particular  section  is  placed. 

§  340.  Jurisdiction  of  circuit  and  district  courts. — 
The  crimes  and  offenses  defined  in  this  title  shall  be 
cognizable  in  the  circuit  and  district  courts  of  the  United 
Slates,  as  prescribed  in  sections  five  hundred  and  sixty- 
three  and  six  hundred  and  twenty-nine  of  the  Revised 
Statutes. 


CHAPTER       FIFTEEN. 

REPEALING  PROVISIONS. 

§  341.  Sections,  acts,  and  parts  of  acts  repealed. 

342.  Accrued  rights,  etc.,  not  affected. 

343.  Prosecutions  and  punishments. 

344.  Acts  of  limitation.  • 

345.  Date  this  act  shall  be  effective. 

§  341.  Sections,  acts,  and  parts  of  acts  repealed. — 
The  following  sections  of  the  Revised  Statutes  and  Acts 
and  parts  of  Acts  are  hereby  repealed: 

Sections  four  hundred  and  twelve,  fifteen  hundred  and 
fifty-three,  sixteen  hundred  and  sixty-eight;  sections 
seventeen  hundred  and  eighty  to  seventeen  hundred  and 
eighty  three,  both  inclusive;  sections  seventeen  hundred 
and  eighty-five,  seventeen  hundred  and  eighty-seven, 
seventeen  hundred  and  eighty-eight,  seventeen  hundred 
and  eighty-nine,  twenty-three  hundred  and  seventy-three, 
twenty-four  hundred  and  twelve,  thirty-five  hundred  and 
eighty-three,  thirty-seven  hundred  and  eight,  thirty- 
seven  hundred  and  thirty-nine,  thirty-seven  hundred  and 
forty,  thirty-seven  hundred  and  forty-two,  thirty-eight 
hundred  and  thirty-two,  thirty-eight  hundred  and  fifty- 
one,  thirty-eight  hundred  and  sixty-nine,  thirty-eight 
hundred  and  eighty-seven;  sections  thirty-eight  hundred 
and  ninety  to  thirty-eight  hundred  and  ninety-four,  both 
inclusive;  section  thirty-eight  hundred  and  ninety-nine; 
sections  thirty-nine  hundred  and  twenty-two  to  thirty- 
nine  hundred  and  twenty-five,  both  inclusive;  sections 
thirty-nine  hundred  and  forty-seven,  thirty-nine  hundred 
and  fifty-four,  thirty-nine  hundred  and  seventy-seven, 
thirty-nine  hundred  and  seventy-nine;  sections  thirty- 
nine  hundred  and  eighty-one  to  thirty-nine  hundred  and 
eighty-six,  both  inclusive;  sections  thirty-nine  hundred 
and  eighty-eight,  thirty-nine  hundred  and  ninety-two, 
thirty-nine  hundred  and  ninety-five,  thirty-nine  hundred 
and  ninety-six,  four  thousand  and  thirteen,  four  thousand 
and  sixteen,  four  thousand  and  thirty,  four  thousand  and 
fifty-three,  fifty-one  hundred  and  eighty-eight,  fifty-one 

(899) 


900  Federal  Criminal  Law  Procedure. 

hundred  and  eighty-nine;  sections  fifty-two  hundred  and 
eighty-one  to  fifty-two  hundred  and  ninety-one,  both  in- 
elusive;  sections  fifty-three  hundred  and  twenty-three  to 
fifty-three  hundred  and  ninety-five,  both  inclusive;  sec- 
tions fifty-three  hundred  and  ninety-eight  to  fifty-four 
hundred  and  ten,  both  inclusive;  sections  fifty-four  hun- 
dred and  thirteen  to  fifty-four  hundred  and  eighty-four, 
both  inclusive;  sections  fifty-four  hundred  and  eighty- 
seven  to  fifty-five  hundred  and  ten,  both  inclusive;  sec- 
tions fifty-five  hundred  and  sixteen,  fifty-five  hundred 
and  eighteen,  fifty-five  hundred  and  nineteen;  sections 
fifty-five  hundred  and  twenty-four  to  fifty-five  hundred 
and  thirty-five,  both  inclusive;  sections  fifty-five  hundred 
and  fifty-one  to  fifty-five  hundred  and  sixty-seven,  both 
inclusive,  of  the  Revised  Statutes: 

That  part  of  section  thirty-eight  hundred  and  twenty- 
nine  of  the  Revised  Statutes  which  reads  as  follows: 
"And  every  person  who,  without  authority  from  the 
Postmaster-General,  sets  up  or  professes  to  keep  any 
office  or  place  of  business  bearing  the  sign,  name,  or  title 
of  post-office,  shall,  for  every  such  offense,  be  liable  to 
a  penalty  of  not  more  than  five  hundred  dollars;" 

That  part  of  section  thirty-eight  hundred  and  sixty- 
seven  of  the  Revised  Statutes  which  reads  as  follows: 
"And  any  person  not  connected  with  the  letter-carrier 
branch  of  the  postal  service  who  shall  wear  the  uniform 
which  may  be  prescribed  shall,  for  every  such  offense,  be 
punishable  by  a  fine  of  not  more  than  one  hundred  dol- 
lars, or  by  imprisonment  for  not  more  than  six  months, 
or  both ; ' ' 

That  part  of  section  four  thousand  and  forty-six  of 
the  Revised  Statutes  which  reads  as  follows:  "Every 
post-master,  assistant,  clerk,  or  other  person  employed  in 
or  connected  with  the  business  or  operations  of  any 
money-order  office  who  converts  to  his  own  use,  in  any 
way  whatever,  or  loans,  or  deposits  in  any  bank,  except 
as  authorized  by  this  title,  or  exchanges  for  other  funds, 
any  portion  of  the  public  money-order  funds,  shall  be 
deemed  guilty  of  embezzlement;  and  any  such  person, 
as  well  as  every  other  person  advising  or  participating 
therein,  shall,  for  every  such  offense,  be  imprisoned  for  not 


Repealing  Pkovisions.  901 

less  than  six  months  nor  more  than  ten  years,  and  be 
fined  in  a  sum  equal  to  the  amount  embezzled;  and  any 
failure  to  pay  over  or  produce  any  money-order  funds 
intrusted  to  such  person  shall  be  taken  to  be  prima  facie 
evidence  of  embezzlement;  and  upon  the  trial  of  any  in- 
dictment against  any  person  for  such  embezzlement,  it 
shall  be  prima  facie  evidence  of  a  balance  against  him 
to  produce  a  transcript  from  the  money-order  account 
books  of  the  Sixth  Auditor.  But  nothing  herein  contain- 
ed shall  be  construed  to  prohibit  any  postmaster  de- 
positing, under  the  direction  of  the  Postmaster-General, 
in  a  national  bank  designated  by  the  Secretary  of  the 
Treasury  for  that  purpose,  to  his  own  credit  as  post- 
master, any  money  order  or  other  funds  in  his  charge, 
nor  prevent  his  negotiating  drafts  or  other  evidences  of 
debt  through  such  bank,  or  through  United  States  dis- 
bursing officers,  or  otherwise,  when  instructed  or  re- 
quired to  do  so  by  the  Postmaster-General,  for  the  pur- 
pose of  remitting  surplus  money-order  funds  from  one 
postoffice  to  another,  to  be  used  in  payment  of  money 
orders. ' ' 

"An  Act  to  protect  lines  of  telegraph  constructed  or 
used  by  the  United  States  for  malicious  injury  and  ob- 
struction," approved  June  twenty-third,  eighteen  hun- 
dred and  seventy-four; 

"An  Act  to  protect  persons  of  foreign  birth  against 
forcible  constraint  or  involuntary  servitude,"  approved 
June  twenty-third,  eighteen  hundred  and  seventy-four; 

That  part  of  "An  Act  making  appropriations  for  the 
service  of  the  Post-Office  Department  for  the  fiscal  year 
ending  June  thirtieth,  eighteen  hundred  and  seventy-five 
and  for  other  purposes,"  approved  June  twenty-third, 
eighteen  hundred  and  seventy-four,  which  reads  as  fol- 
lows: "That  any  postmaster  who  shall  affix  his  signature 
to  the  approval  of  any  bond  of  a  bidder  or  to  the  cer- 
tificate of  sufficiency  of  sureties  in  any  contract  before  the 
said  bond  or  contract  is  signed  by  the  bidder  or  con- 
tractor and  his  sureties,  or  shall  knowingly,  or  without 
the  exercise  of  due  diligence  approve  any  bond  of  a  bid- 
der with  insufficient  sureties,  or  shall  knowingly  make 
any  false  or  fraudulent  certificate,  shall  be  forthwith  dis- 


902  Federal  Criminal  Law  Procedure. 

missed  from  office  and  be  thereafter  disqualified  from 
holding  the  office  of  postmaster,  and  shall  also  be  deemed 
guilty  of  a  misdemeanor,  and  on  conviction  thereof  be 
punished  by  a  fine  not  exceeding  five  thousand  dollars, 
or  by  imprisonment  not  exceeding  one  year,  or  both;" 

Sections  one,  two,  and  three  of  "An  Act  to  protect 
ornamental  and  other  trees  on  Government  reservations 
and  on  lands  purchased  by  the  United  States,  and  for 
other  purposes,"  approved  March  third  eighteen  hun- 
dred and  seventy-five; 

"An  Act  to  punish  certain  larcenies  and  the  receivers 
of  stolen  goods,"  approved  March  third,  eighteen  hun- 
dred and  seventy-five; 

"An  Act  to  amend  section  fifty-four  hundred  and 
fifty-seven  of  the  Eevised  Statutes  of  the  United  States, 
relating  to  counterfeiting,"  approved  January  sixteenth, 
eighteen  hunderd  and  seventy-seven; 

That  part  of  section  five  of  "An  act  establishing  post- 
roads,  and  for  other  purposes,"  approved  March  third, 
eighteen  hundred  and  seventy-seven,  which  reads  as  fol- 
lows: "And  if  any  person  shall  make  use  of  any  such 
official  envelope  to  avoid  the  payment  of  postage  on  his 
private  letter,  package,  or  other  matter  in  the  mail,  the 
person  so  offending  shall  be  deemed  guilty  of  a  misde- 
meanor and  subject  to  a  fine  of  three  hundred  dollars, 
to  be  prosecuted  in  any  court  of  competent  jurisdiction ; ' ' 

That  part  of  section  one  of  "An  Act  making  appropria- 
tions for  the  service  of  the  Post-Office  Department  for  the 
year  ending  June  thirtieth,  eighteen  hundred  and  seventy- 
nine,  and  for  other  purposes,"  approved  June  seven- 
teenth, eighteen  hundred  and  seventy-eight,  which  reads 
as  follows:  "And  any  postmaster  who  shall  make  a 
false  return  to  the  auditor,  for  the  purpose  of  fraudulently 
increasing  his  compensation  under  the  provisions  of  this 
or  any  other  Act,  shall  be  deemed  guilty  of  a  misdemean- 
or, and,  on  conviction  thereof,  shall  be  fined  in  a  sum 
not  less  than  fifty  nor  more  than  five  hundred  dollars, 
or  imprisoned  for  a  term  not  exceeding  one  year,  or 
punished  by  both  such  fine  and  imprisonment,  in  the  dis- 
cretion of  the  court;  and  no  postmaster  of  any  class, 
or  other  person  connected  with  the  postal  service,  in- 


Repealing  Provisions.  903 

trusted  with  the  sale  or  custody  of  postage  stamps,  stamp- 
ed envelopes,  or  postal  cards,  shall  use  or  dispose  of 
them  in  the  payment  of  debts  or  in  the  purchase  of 
merchandise  or  other  salable  articles,  or  pledge  or  hypoth- 
ecate the  same,  or  sell  or  dispose  of  them  except  for 
cash,  or  sell  or  dispose  of  postage  stamps  or  postal  cards 
for  any  larger  or  less  sum  than  the  values  indicated  on 
their  faces,  or  sell  or  dispose  of  stamped  envelopes  for  a 
larger  or  less  sum  than  is  charged  therefor  by  the  Post- 
Office  Department  for  like  quantities,  or  sell  or  dispose 
of  postage  stamps,  stamped  envelopes,  or  postal  cards 
otherwise  than  as  provided  by  law  and  the  regulations 
of  the  Post-Office  Department;  and  any  postmaster  or 
other  person  connected  with  the  postal  service  who  shall 
violate  any  of  these  provisions  shall  be  deemed  guilty 
of  a  misdemeanor,  and,  on  conviction  thereof,  shall  be 
fined  in  any  sum  not  less  than  fifty  nor  more  than  five 
hundred  dollars,  or  imprisoned  for  a  term  not  exceeding 
one  year;" 

''An  Act  to  amend  section  fifty-four  hundred  and 
ninety-seven  of  the  Revised  Statutes,  relating  to  em- 
bezzlement by  officers  of  the  United  States,"  approved 
February  third,  eighteen  hundred  and  seventy-nine; 

That  part  of  section  one  of  "An  Act  making  appropria- 
tions for  the  service  of  the  Post-Office  Department  for 
the  fiscal  year  ending  June  thirtieth,  eighteen  hundred 
and  eighty,  and  for  other  purposes,"  approved  March 
third,  eighteen  hundred  and  seventy-nine,  which  reads  as 
follows:  "That  nothing  contained  in  section  thirty-nine 
hundred  and  eighty-two  of  the  Revised  Statutes  shall 
be  construed  as  prohibiting  any  person  from  receiving 
and  delivering  to  the  nearest  postoffice  or  postal  car  mail 
matter  properly  stamped."  Also  sections  thirteen, 
twenty-three,  twenty-seven,  and  twenty-eight  of  said  Act; 

"An  Act  to  amend  section  fifty-four  hundred  and  forty 
of  the  Revised  Statutes,"  approved  May  seventeenth, 
eighteen  hundred  and  seventy-nine; 

Sections  one,  three,  and  four  of  "An  Act  to  amend 
section  fifty-three  hundred  and  fifty-two  of  the  Revised 
Statutes  of  the  United  States,  in  reference  to  bigamy,  and 
for  other  purposes,"  approved  March  twenty-second, 
eighteen  hundred  and  eighty-two; 


904  Federal  Criminal  Law  Procedure. 

Sections  eleven,  twelve,  thirteen,  and  fourteen,  and 
fifteen  of  "An  Act  to  regulate  and  improve  the  civil 
service  of  the  United  States,"  approved  January  six- 
teenth, eighteen  hundred  and  eighty-three; 

"An  Act  making  it  a  felony  for  a  person  to  falsely 
and  fraudulently  assume  or  pretend  to  be  an  officer  or 
employee  acting  under  authority  of  the  United  States 
or  any  department  or  officer  thereof,  and  prescribing  a 
penalty  therefor,"  approved  April  eighteenth,  eighteen 
hundred  and  eighty-four; 

"An  Act  to  prevent  and  punish  the  counterfeiting 
within  the  United  States  of  notes,  bonds,  or  other  se- 
curities of  foreign  governments,"  approved  May  six- 
teenth, eighteen  hundred  and  eighty-four; 

Section  nine  of  "An  Act  making  appropriations  for 
the  current  and  contingent  expenses  of  the  Indian  De- 
partment and  for  fulfilling  treaty  stipulations  with  vari- 
ous Indian  tribes  for  the  year  ending  June  thirtieth, 
eighteen  hundred  and  eighty-six,  and  for  other  pur- 
poses," approved  March  third,  eighteen  hundred  and 
eighty-five ; 

Section  two  of  "An  Act  to  amend  the  Act  entitled  'An 
Act  to  modify  the  money-order  system,  and  for  other 
purposes,'  approved  March  third,  eighteen  hundred  and 
eigh ty- three, "  approved  January  third,  eighteen  hun- 
dred and  eighty-seven; 

Section  three,  four,  five,  nine,  and  ten  of  "An  Act  to 
amend  an  Act  entitled  'An  Act  to  amend  section  fifty- 
three  hundred  and  fifty-two  of  the  Revised  Statutes  of 
the  United  States,  in  reference  to  bigamy,  and  for  other 
purposes,'  approved  March  twenty-second,  eighteen  hun- 
dred and  eighty-two,"  approved  March  third,  eighteen 
hundred  and  eighty-seven; 

Section  two  of  "An  Act  relating  to  permissible  marks, 
printing  or  writing,  upon  second,  third,  and  fourth  class 
matter,  and  to  amend  the  twenty-second  and  twenty- 
third  sections  of  an  Act  entitled  'An  Act  making  ap- 
propriations for  the  service  of  the  Post-Office  Department 
for  the  fiscal  year  ending  June  thirtieth,  eighteen  hun- 
dred and  eighty,  and  for  other  purposes,'  "  approved 
January   twentieth,  eighteen  hundred  and  eighty-eight; 


Repealing  Pkovisions.  905 


<  i 


An  Act  to  amend  section  fifty-three  hundred  and 
eighty-eight  of  the  Eevised  Statutes  of  the  United  States 
in  relation  to  timber  depredations,"  approved  June 
fourth,  eighteen  hundred  and  eighty-eight; 

"An  Act  relating  to  postal  crimes,  and  amendatory  of 
the  statutes  therein  mentioned,"  approved  June  eigh- 
teenth, eighteen  hundred  and  eighty-eight; 

"An  Act  amendatory  of  'An  Act  relating  to  postal 
crimes  and  amendatory  of  the  statutes  therein  mention- 
ed," approved  June  eighteenth,  eighteen  hundred  and 
eighty-eight,  and  for  other  purposes,"  approved  Sep- 
tember twenty-sixth,  eighteen  hundred  and  eighty-eight; 

"An  Act  to  punish,  as  a  felony,  the  carnal  and  unlaw- 
ful knowing  of  any  female  under  the  age  of  sixteen 
years,"  approved  February  ninth,  eighteen  hundred  and 
eighty-nine; 

Sections  one  and  two  of  "An  Act  to  punish  dealers  and 
pretended  dealers  in  counterfeit  money  and  other  fraud- 
ulent devices  for  using  the  United  States  mails,"  ap- 
proved March  second,  eighteen  hundred  and  eighty-nine; 

Section  one  of  "An  Act  to  amend  certain  sections  of 
the  Revised  Statutes  relating  to  lotteries,  and  for  other 
purposes,"  approved  September  nineteenth,  eighteen  hun- 
dred and  ninety; 

"An  Act  further  to  prevent  counterfeiting  or  manufac- 
ture of  dies,  tools,  or  other  implements  used  in  counter- 
feiting, and  providing  penalties  therefor,  and  providing 
for  the  issue  of  search  warrants  in  certain  cases,"  ap- 
proved February  tenth,  eighteen  hundred  and  ninety- 
one; 

"An  Act  to  amend  sections  fifty-three  hundred  and 
sixty-five  and  fifty  three  hundred  and  sixty-six  of  the 
Revised  Statutes  relating  to  barratry  on  the  highseas,,: 
approved  August  sixth,  eighteen  hundred  and  ninety- 
four; 

Sections  one  and  two  of  "An  Act  for  the  suppression  of 
lottery  traffic  through  national  and  interstate  commerce 
and  the  postal  service,  subject  to  the  jurisdiction  and 
laws  of  the  United  States,"  approved  March  second, 
eighteen  hundred  and  ninety-five; 


906  Federal  Criminal  Law  Procedure. 

"An  Act  to  prohibit  prize  fighting  and  pugilism  and 
fights  between  men  and  animals,  and  to  provide  penalties 
therefor  in  the  Territories  and  the  District  of  Columbia, ' ' 
approved  February  seventh,  eighteen  hundred  and  ninety- 
six; 

That  part  of  "An  Act  making  appropriations  for  the 
Department  of  Agriculture  for  the  fiscal  year  ending- 
June  thirtieth,  eighteen  hundred  and  ninety-five,"  ap- 
proved August  eighth,  eighteen  hundred  and  ninety-four, 
and  that  part  of  "An  Act  making  appropriations  for 
the  Department  of  Agriculture  for  the  fiscal  year  ending 
June  thirtieth,  eighteen  hundred  and  ninety-six,"  ap- 
proved March  second,  eighteen  hundred  and  ninety-five, 
and  that  part  of  "An  Act  making  appropriations  for  the 
Department  of  Agriculture  for  the  fiscal  year  ending 
June  thirtieth,  eighteen  hundred  and  ninety-seven,"  ap- 
proved April  twenty-fifth,  eighteen  hundred  and  ninety- 
six,  which  reads  as  follows:  "Any  person  who  shall 
knowingly  issue  or  publish  any  weather  forecasts  or  warn- 
ings of  weather  conditions  falsely  representing  such  fore- 
casts or  warnings  to  have  been  issued  or  published  by 
the  Weather  Bureau,  United  States  Signal  Service,  or 
other  branch  of  the  government  service,  shall  be  deemed 
guilty  of  a  misdemeanor,  and,  on  conviction  thereof,  for 
each  offense  be  fined  in  a  sum  not  exceeding  five  hundred 
dollars,  or  imprisoned  not  to  exceed  ninety  days,  or  be 
both  fined  and  imprisoned,  in  the  discretion  of  the  court;" 

That  part  of  "An  Act  making  appropriations  for  cur- 
rent and  contingent  expenses  of  the  Indian  Department 
and  fulfilling  treaty  stipulations  with  various  Indian 
tribes  for  the  fiscal  year  ending  June  thirtieth,  eighteen 
hundred  and  ninety-seven,  and  for  other  purposes,"  ap- 
proved June  tenth,  eighteen  hundred  and  ninety-six, 
which  reads  as  follows:  "Provided  further,  That  here- 
after it  shall  be  unlawful  for  any  person  to  destroy,  de- 
face, change,  or  remove  to  another  place  any  section 
corner,  quarter-section  corner,  or  meander  post  on  any 
Government  line  of  survey,  or  to  cut  down  any  witness 
tree  or  any  tree  blazed  to  mark  the  line  of  a  Government 
survey,  or  to  deface,  change,  or  remove  any  monument 
or  bench  mark  of  any  Government  survey.     That  any 


Eepealing  Provisions.  907 

person  who  shall  offend  against  any  of  the  provisions  of 
this  paragraph  shall  be  deemed  guilty  of  a  misdemeanor, 
and,  upon  conviction  thereof  in  any  court,  shall  be  fined 
not  exceeding  two  hundred  and  fifty  dollars  or  be  im- 
prisoned not  more  than  one  hundred  days.  All  the  fines 
accruing  under  this  paragraph  shall  be  paid  into  the 
Treasury,  and  the  informer  in  each  case  of  conviction 
shall  be  paid  the  sum  of  twenty-five  dollars;" 

"An  Act  to  reduce  the  cases  in  which  the  penalty  of 
death  may  be  inflicted,"  approved  January  fifteenth, 
eighteen  hundred  and  ninety-seven; 

"An  Act  to  prevent  the  carrying  of  obscene  literature 
and  articles  designed  for  indecent  and  immoral  use  from 
one  State  or  Territory  into  another  State  or  Territory," 
approved  February  eight,  eighteen  hundred  and  ninety- 
seven  ; 

"An  Act  to  prevent  forest  fires  on  the  public  domain," 
approved  February  twenty-fourth,  eighteen  hundred  and 
ninety-seven; 

"An  Act  to  prevent  the  purchasing  of  or  speculating  in 
claims  against  the  Federal  Government  by  United 
States  officers,"  approved  February  twenty-fifth,  eigh- 
teen hundred  and  ninety-seven; 

"An  Act  to  amend  section  fifty-four  hundred  and  fifty- 
nine  of  the  Revised  Statutes,  prescribing  the  punishment 
for  mutilating  United  States  coins,  and  for  uttering  or 
passing  or  attempting  to  utter  or  pass  such  mutilated 
coins,"  approved  March  third,  eighteen  hundred  and 
ninety-seven ; 

Section  eighteen  of  "An  Act  to  amend  the  laws  relat- 
ing to  navigation, ' '  approved  March  third,  eighteen  hun- 
dred and  ninety-seven; 

That  part  of  section  one  of  "An  Act  making  appropria- 
tions for  the  service  of  the  Post-Office  Department  for 
the  fiscal  year  ending  June  thirtieth,  eighteen  hundred 
and  ninety-nine,"  approved  June  thirteenth,  eighteen 
hundred  and  ninety-eight,  which  reads  as  follows:  "Pro- 
vided, That  any  person  or  persons  who  shall  place  or  cause 
to  be  placed  any  matter  in  the  mails  during  the  regular 
weighing  period,  for  the  purpose  of  increasing  the  weight 
of  the  mails  with  intent  to  cause  an  increase  in  the  com- 


908  Federal  Criminal  Law  Procedure. 

pen  sat  ion  of  the  railroad  mail  carrier  over  whose  route 
such  mail  matter  may  pass,  shall  be  deemed  guilty  of 
a  misdemeanor,  and  shall  on  conviction  thereof  be  fined 
not  less  than  five  hundred  dollars  nor  more  than  twenty 
thousand  dollars,  and  shall  be  imprisoned  at  hard  labor 
not  less  than  thirty  days  nor  more  than  five  years;" 

Section  seventeen  of  "An  Act  to  provide  revenue  for  the 
Government,  and  to  encourage  the  industries  of  the  Unit- 
ed States,"  approved  July  twenty-fourth,  eighteen  hun- 
dred and  ninety-seven; 

Section  three  of  an  Act  entitled  "An  Act  making  ap- 
propriations for  the  service  of  the  Post-Office  Department 
for  the  fiscal  year  ending  June  thirtieth,  nineteen  hundred 
and  four,  and  for  other  purposes,"  approved  March 
third,  nineteen  hundred  and  three; 

"An  Act  to  protect  the  harbor  defenses  and  fortifica- 
tions constructed  or  used  by  the  United  States  from 
malicious  injury,  and  for  other  purposes,"  approved  July 
seventh,  eighteen  hundred  and  ninety-eight; 

"An  Act  to  amend  an  Act  entitled  'An  Act  to  prevent 
forest  fires  on  the  public  domain,'  approved  February 
twenty-fourth,  eighteen  hundred  and  ninety-seven,"  ap- 
proved May  twenty-fifth,  nineteen  hundred; 

Sections  two,  three,  and  four  of  "An  Act  to  enlarge 
the  powers  of  the  Department  of  Agriculture,  prohibit 
the  transportation  by  interstate  commerce  of  game  killed 
in  violation  of  local  laws,  and  for  other  purposes,"  ap- 
proved May  twenty-fifth,  nineteen  hundred; 

"An  Act  to  prevent  the  sale  of  firearms,  opium,  and 
intoxicating  liquors  in  certain  islands  of  the  Pacific," 
approved  February  fourteenth,  nineteen  hundred  and 
1  wo ; 

"An  Act  for  the  suppression  of  train  robbery  in  the 
Territories  of  the  United  States  and  elsewhere,  and  for 
other  purposes,"  approved  July  first,  nineteen  hundred 
and  two; 

"An  Act  conferring  jurisdiction  upon  the  circuit  and 
district  courts  for  the  district  of  South  Dakota  in  certain 
cases,  and  for  other  purposes,"  approved  February  sec- 
ond, nineteen  hundred   and  three; 


Eepealing  Peovisions.  900 

"An  Act  to  amend  section  three  of  the  'Act  further  to 
prevent  counterfeiting  or  manufacturing  of  dies,  tools, 
or  other  implements  used  in  manufacturing,'  and  so 
forth,  approved  February  tenth,  eighteen  hundred  and 
ninety-one,"  approved  March  third,  nineteen  hundred 
and  three; 

"An  Act  for  the  protection  of  the  Bull  Run  Forest  Re- 
serve and  the  sources  of  the  water  supply  of  the  city  of 
Portland,  State  of  Oregon,"  approved  April  twenty- 
eighth,  nineteen  hundred  and  four; 

"An  Act  to  amend  the  Act  of  February  eighth,  eigh- 
teen hundred  and  ninety-seven,  entitled  'An  Act  to  pre- 
vent the  carrying  of  obscure  literature  and  articles  de- 
signed for  indecent  and  immoral  use  from  one  State  or 
Territory  into  another  State  or  Territory,'  so  as  to  pre- 
vent the  importation  and  exportation  of  the  same;"  ap- 
proved February  eighth,  nineteen  hundred  and  five; 

"An  Act  to  amend  section  thirteen  of  chapter  three 
hundred  and  ninety-four  of  the  Supplement  of  the  Re- 
vised Statutes  of  the  United  States,"  approved  March 
second  nineteen  hundred  and  five; 

Section  five  of  "An  Act  to  amend  sections  forty-four 
hundred  and  seventeen,  forty-four  hundred  and  fifty- 
three,  forty-four  hundred  and  eighty-eight,  and  forty- 
four  hundred  and  ninety-nine  of  the  Revised  Statues  re- 
lating to  misconduct  by  officers  or  owners  of  vessels," 
approved  March  third,  nineteen  hundred  and  five; 

"An  Act  to  punish  the  cutting,  chipping,  or  boxing  of 
trees  on  the  public  lands,"  approved  June  fourth,  nine- 
teen hundred  and  six. 

Sections  sixteen,  seventeen,  and  nineteen  of  "An  Act 
to  establish  a  bureau  of  immigration  and  naturalization, 
and  to  provide  for  a  uniform  rule  for  the  naturalization 
of  aliens  throughout  the  United  States,"  approved  June 
twenty-ninth,  nineteen  hundred  and  six. 

An  Act  entitled  "An  Act  to  prohibit  corporations  from 
making  money  contributions  connection  with  political 
elections,"  approved  January  twenty-sixth,  nineteen  hun- 
dred and  seven. 

An  Act  entitled  "An  Act  to  amend  sections  one,  two, 
and  three  of  an  Act  entitled  'An  Act  to  prohibit  shang- 


910  Federal  Criminal  Law  Procedure. 

haiing  in  the  United  States,'  approved  June  twenty- 
eight,  nineteen  hundred  and  six,"  approved  March  sec- 
ond, nineteen  hundred  and  seven. 

An  Act  entitled  "An  Act  to  promote  the  safe  transpor- 
tation in  interstate  commerce  of  explosives  and  other 
dangerous  articles,  and  to  provide  penalties  for  its  viola- 
tion," approved  May  thirteenth,  nineteen  hundred  and 
eight. 

An  Act  entitled  "An  Act  to  amend  section  fifty-four 
hundred  and  thirty-eight  of  the  Revised  Statutes,"  ap- 
proved May  thirtieth,  nineteen  hundred  and  eight. 

Also  all  other  sections  and  parts  of  sections  of  the 
Revised  Statutes  and  Acts  and  parts  of  Acts  of  Congress, 
in  so  far  as  they  are  embraced  within  and  superseded  by 
this  Act,  are  hereby  repealed;  the  remaining  portions 
thereof  to  be  and  remain  in  force  with  the  same  effect 
and  to  the  same  extent  as  if  this  Act  had  not  been  passed. 

§  342.  Accrued  rights,  etc.,  not  affected. — The  repeal 
of  existing  laws  or  modifications  thereof  embraced  in 
this  title  shall  not  affect  any  act  done,  or  any  right  ac- 
curring  or  accrued,  or  any  suit  or  proceeding  had  or  com- 
menced in  any  civil  cause  prior  to  said  repeal  or  modifica- 
tions, but  all  liabilities  under  said  laws  shall  continue  and 
may  be  enforced  in  the  same  manner  as  if  said  repeal  or 
modifications  had  not  been  made. 

§  343.  Prosecutions  and  punishments. — All  offenses 
committed,  and  all  penalties,  forfeitures,  or  liabilities  in- 
curred prior  to  the  taking  effect  hereof,  under  any  law 
embraced  in,  or  changed,  modified,  or  repealed  by  this 
title,  may  be  prosecuted  and  punished  in  the  same  manner 
and  with  the  same  effect  as  if  this  Act  had  not  been  passed. 

§  344.  Acts  of  limitation. — All  acts  of  limitation, 
whether  applicable  to  civil  causes  and  proceedings,  or 
for  the  recovery  of  penalties  or  forfeitures,  embraced  in, 
modified,  changed,  or  repealed  by  this  title,  shall  not  be 
affected  thereby;  and  all  suits  or  proceedings  for  causes 
arising  or  acts  done  or  committed  prior  to  the  taking 
effect  hereof  may  be  commenced  and  prosecuted  within 
the  same  time  and  with  the  same  effect  as  if  said  repel 
had  not  been  made. 


Repealing  Provisions.  911 

§  345.  Date  this  act  shall  be  effective. — This  Act  shall 
take  effect  and  be  in  force  on  and  after  the  first  day  of 
January,  nineteen  hundred  and  ten. 

Approved,  March  4,  1909. 


INDEX  TO  FOREGOING  PENAL  CODE. 


Abortion :  Sec. 

Aiding  in  trading,  etc.,  in 

articles  to  produce,   ....    102 
Articles    to    produce,    non- 
mailable       211 

Shipment  of  articles  to  pro- 
duce, in  foreign  and  in- 
terstate commerce    245 

Traffic   in   articles   to   pro- 
duce,  in   Territories    ...   312 
Accessories : 

Punishment  of    333 

Adultery: 

Punishment   for    316 

Affidavits : 

Altering,         counterfeiting, 

etc 28 

Taking   or   carrying   away, 

etc.,   unlawfully    40 

Unlawful  use  of,  to  secure 
payment   of   claims,    etc.     40 
Aliens: 

Counterfeiting  oath,  etc., 
relating  to  naturalization 

of    76 

Depriving,   of   civil   rights.     20 
Animal  Industry  Bureau: 

Forcibly    resisting    officers 

of      62 

Armories : 

Enticing     workmen     from.     43 
Hiring    or    concealing    em- 
ployees  of    43 

Arms : 

Purchasing  or  receiving,  in 

pledge   from    soldiers    .  .      35 
Stealing,     etc.,    of    United 

States     36 

Army    posts: 

See    Military    reservations. 
Arsenals : 

Arson   of    286 

Enticing  workmen  from   . .      43 
Hiring    or    concealing    em- 
ployees  of    43 

Unlawful   presence   upon    .      45 
Arson : 

Of   arsenal,   etc 286 

Of   dwelling    house    285 

Assault : 

With     intent     to     commit 

murder,    rape,    etc 276 

Bail : 

Procuring    false     127 

See   Securities. 

58 


Bankers :  Sec. 

Converting,      using,      etc., 

public    moneys    96 

Bids: 

Altering,        counterfeiting, 

etc 28 

Having  in  possession  alter- 
ed, etc.,  with  intent  to 
defraud     28 

Uttering  or  publishing  al- 
tered,   etc 28 

Birds: 

Hunting,  etc.,  on  preserves     84 

Importation      of      certain, 

prohibited     241 

Blood: 

No  conviction  to  work  cor- 
ruption   of     324 

Bonds : 

Altering,  counterfeiting, 
etc 28 

Having  in  possession  al- 
tered, etc.,  with  intent 
to    defraud     28 

Imitating,  printing  adver- 
tisements on,   etc 177 

Uttering  or  publishing  al- 
tered,  etc 28 

Bribery : 

Acceptance  of,  by  juror, 
judicial  officer,  etc 133 

Attempting,  of  Members  of 
Congress      Ill 

Of  government   officials    .  .      39 

Of  judge  or  judicial  officer   131 

Of    members    of    Congress.   110 

Officers  of  United  States 
accepting     117 

Of   revenue   officers    67 

Of    witnesses     134 

Bull   fights: 

Prohibited     320 

Bull   Run  National   Forest: 

Trespassing  upon    55 

Bureau   of   Animal   Industry: 

See  Animal  Industry  Bu- 
reau. 

Certificates: 

Altering,        counterfeiting, 

etc 20 

Falsifying    by    officials     .  .    106 
Having    in    possession    al- 
tered,   etc.,    with    intent 
to  defraud    30 


914 


Index. 


Certificates — Continued.  Sec. 

Imitating,  printing  adver- 
tisements  on,   etc 177 

Officials  making  false,  to 
obtain  payment  of  claim     35 

Postmaster    making     false.  222 

Taking  or  carrying  away, 
etc.,    unlawfully     40 

Unlawful  use  of,  to  secure 
payment   of    claims,    etc.     40 

Uttering  or  publishing  al- 
tered,   etc 29 

Certificates   of   entry: 

Altering,  counterfeiting, 
etc.,  by  officers    63 

Citizens: 

Falsely  claiming  to  be,  of 
United  States   79 

Intimidation  of,  in  exercise 
of  rights,  etc.,  secured 
by     Constitution     19 

Citizenship : 

Counterfeiting  certificate 
of     74 

Counterfeiting,  etc.,  signa- 
ture, etc.,  to  obtain  cer- 
tificate   of    76 

Denying,  after  naturaliza- 
tion          77 

Engraving  plate,  etc.,  for 
printing  certificate  of   .  .      75 

False  impersonation  to  ob- 
tain tertificate  of 76 

Falsely  claiming     79 

Printing  or  photographing 
certificates   of    75 

Selling,    etc.,   certificate   of     76 

Unlawful  possession,  etc., 
of  counterfeit  certificates 
of     77 

Unlawful  possession  of 
counterfeit  plates,  etc., 
of  certificates  of    75 

Unlawful  use  of  certificates 

of    78 

Claims: 

Aiding  in  payment  of  false     35 

Court  officials  purchasing, 
for  fees,  etc 104 

False  presentation  of 
against  United  States   . .      35 

Members  of  Congress  be- 
ing interested  in,  against 
United  States    113 

Officers  not  to  be  interest- 
ed in,  against  United 
States      10!) 

Presenting  false,  etc.,  as  to 
mail    matter    224 


Clerks  of  courts:  Sec. 

Failure      of,      to      deposit 

moneys      99 

Purchasing  claims  for  wit- 
ness fees,  etc 104 

Receiving  money,  as  a  loan 

etc.,    from     100 

Cohabitation: 

Unlawful      314 

Coins: 

Counterfeited,  to  be  for- 
feited         172 

Counterfeiting,     gold     and 

silver      163 

Counterfeiting,    importing, 

etc.,  designs  of 171 

Counterfeiting,     etc.,     dies 

for  foreign   170 

Counterfeiting,     etc.,     dies 

for,  of  United  States   ..    16') 
Debasement  of,  by    officers 

of  mint   166 

Embezzling,    by    officers    of 

mint     166 

Making,     etc.,     devices     of 

minor     163 

Making,  etc.,  in  resem- 
blance of  money   167 

Marshals,  etc.,  authorized 
to  search  for  counter- 
feited         173 

Minor;    counterfeiting,   etc.   164 
Mutilating,  scaling,  etc.    . .    165 
Passing,   etc.,   counterfeited   16:5 
Passing,    etc.,    or    bringing 
into  United  States  muti- 
lated,   etc 105 

Commerce : 

Foreign     and     interstate — 
Depositing           obscene 
books,  etc.,  for  ship- 
ment  in    245 

Importation  of  certain 
animals     and     birds 

prohibited     24 1 

Interstate  Commerce 
Commission  to  regu- 
late transportation 
of  explosives  in  ....  233 
Marking  of  packages 
containing  birds  and 
animals  to  be  ship- 
ped in    243 

Marking  of  packages 
containing  explo- 
sives  to    be    shipped 

in      235 

Shipment     of      lottery 

tickets,  etc.,  in    ....   237 
Unlawful    shipment   of 
dynamite,  etc.,  in   .  .   232 


Index. 


915 


Commerce,  Foreign,  etc. — Continued. 

Sec. 

Unlawful  shipment  of 
liquid    nitroglycerin, 

etc.,   in    234 

Interstate — 

Packages  containing 
intoxicating  liquors 
for  shipment  in,  to 
be  marked  as  such  .  240 
Shipment  of  certain 
birds  and  animals 
in,  prohibited ;  ex- 
ception         242 

Shipment  of  intoxicat- 
ing liquors  in;  com- 
mon carrier  not  to 
collect  purchase 

price   of    239 

Shipment  of  intoxicat- 
ing liquors  in;  de- 
livery to  be  to  bona 

fide  consignee    238 

Conspiracy : 

To  cast  away  vessel 296 

To  commit  any  offense 
against     United     States ; 

all  parties  liable    37 

To  induce  an  officer  of 
United  States  to  leave 
any  State,  Territory,  etc.  21 
To  intimidate,  etc.,  citizen 
in  free  exercise  of  right, 
etc.,  secured  by  Consti- 
tution          19 

To      intimidate     witnesses, 

jurors,     etc 136 

To  prevent  any  person 
from  accepting  or  hold- 
ing office    21 

Seditious  6 

Consuls : 

Falsely   certifying    invoices     70 
Contracts : 

Altering,         counterfeiting, 

etc.,    2S 

Employees  of  postal  service 
not  to  become  interested 
in,    for    carrying    mails, 

etc 226 

Having  in  possession  al- 
tered,   etc.,    with    intent 

to  defraud    28 

Members  of  Congress  in- 
interested   in    114 

Officers  making,  to  pay 
larger  sum  than  appro- 
pirated    98 

Officials  making,  with 
Members  of  Congress  ...    115 


Contracts — Continued.  Sec. 

Procuring,   by   Members   of 

Congress    1 12 

Uttering  or  publishing  al- 
tered,   etc 28 

Conveyances : 

Falsely  certifying  record- 
ing of    105 

Corporations : 

Circulating  bills  of  expired  174 
Contributions    by,    to    elec- 
tions             83 

Officers   of,    not   to   act   as 
government      agents      to 
make   public   contracts..      41 
Counterfeit  money: 

Using   mails    to    distribute  215 

Counterfeiting: 

Banks  notes  of  foreign  gov- 
ernments         158 

Bonds,  notes,  etc.,  of  for- 
eign governments    156 

Certificates  of  citizenship  .  74 
Certificates     of     entry     by 

officials      63 

Designs  of  coins   171 

Dies    for    coins    of    United 

States    169 

Dies,  etc.,  for  foreign  coins  170 
Gold  and  silver  coins  ....  163 
Issue  of  search  warrants  to 

detect     173 

Letters    patent    27 

Military  bounty-land  war- 
rant,  etc 73 

Minor  coins    164 

Money   orders    218 

National-bank  notes   14:) 

Postage  stamps,  foreign  .  .  220 
Postage      stamps,       postal 

cards,   etc 219 

Begistry   or   enrollment   of 

vessel     72 

Securities  of  United  States   14S 
Signature  of  postmaster  .  .   218 
Uttering,      etc.,      military 
bounty-land  warrant,  etc.     73 
Courts : 

Crimes  defined  in  title  cog- 
nizable by  circuit  and 
district    340 

Officers  of,  failing  to  de- 
posit moneys,  etc 99 

Officers  of,  purchasing 
claims  for  witness  fees, 
etc 104 

Beceiving  loan  etc.,  from 
officers  of   100 


916 


Index. 


Crop  reports:  Sec. 

Officials  giving  advance 
information  respecting  .  .    123 

Officials  issuing  false  statis- 
tics   respecting    124 

Assaulting,  etc.,  officer  of  .     65 

Death: 

Infliction  of  penalty  of,  by 

hanging 323 

Deeds : 

Altering,  counterfeiting, 
etc 29 

Having  in  possession  al- 
tered, etc.,  with  intent 
to  defraud    30 

Uttering  or  publishing  al- 
tered,  etc 2!) 

Desertion : 

Enticing,    from    army    and 

navy    42 

District   courts: 

Jurisdiction      in      offenses 

against  neutrality 14 

Dynamite: 

Shipping,  unlawfully,  in 
foreign      and      interstate 

commerce     232 

Elections : 

Contributions  to,  by  cor- 
porations and  national 
banks     83 

Intimidation  of  voters  by 
officers,  etc.,  of  army 
and  navy  at    23 

Officers,  etc.,  of  army  and 
navy,  intimidating  offi- 
cers  of    25 

Officers  of  army  or  navy, 
prescribing  qualifications 
of  voters  at    24 

Unlawful         presence        of 

troops    at     22 

Embezzlement: 

Of  coins  by  officers  of  mint  160 

Of  mail  matter 194 

By  officers,  clerks,  of 
United    States     86 

Of  postal  funds,  property, 
etc    225 

Of  public  moneys,  by  dis- 
bursing officers    87 

Of  public  moneys,  by  in- 
ternal-revenue officers    .  .      97 

Of  public   property    47 

Explosives : 

Death  or  injury  from,  in 
transportation ;  person 
liable    236 

Interstate  Commerce  Com- 
mission to  regulate 
transportation  of   233 


Explosives — Continued.  Sec. 

Marking  packages  contain- 
ing       235 

Sending,  in  mails,  prohib- 
ited         217 

Shipping  unlawfully,  in 
foreign    and    interstate  J    232 

commerce     {    234 

Extortion: 

By  officers  of  United  States     85 

By  threats  of  informing,  etc  14."> 
Felony : 

Definition  of    335 

Misprision   of    146 

Female : 

Having  carnal  knowledge 
of,  under   16    279 

Payment  of  fine  to,  when 
seduced      28 1 

Seduction  of,   passenger  on 

vessel .   280 

Fines: 

For  timber  depredations, 
to  be  paid  into  public 
school   fund    54 

Foreign   governments: 

Accepting  commission  to 
serve,  against  friendly 
power     9 

Argumenting  force  of  war 
vessels    of    12 

Counterfeiting,  etc.,  bank 
notes  of    158 

Counterfeiting,  etc.,  de- 
signs of  coins  of    17 1 

Counterfeiting,  etc.,  dies 
for  coins  of   170 

Counterfeiting,  etc.,  post- 
age  stamps   of    220 

Counterfeiting,  etc.,  secu- 
rities of    156 

Enlisting  in  service  of  ... .      10 

Fitting  out  and  arming  ves- 
sels to  serve    11 

Having  in  possession,  etc., 
counterfeited,  etc.,  bank 
notes   of    160 

Having  unlawful  posses- 
sion of  plates  for  print- 
ing  securities   of    161 

Organizing  military  expedi- 
tions against   13 

Passing,  etc.,  counterfeit- 
ed, etc.,  bank  notes  of..    159 

Piracy  by  subjects  of   ....    305 

Unauthorized  correspon- 
dence with    5 

Forgery : 

Of  bids,  etc   28 

Of  certificates,  etc 35 


Index. 


917 


Forgery — Continued.  Sec. 

By  connecting  parts  of  dif- 
ferent   instruments    ....    162 

Of  deeds,  etc 29 

Of  judicial  papers,  etc.    . .    130 

Of  letter  patent   27 

Of     securities     of     United 

States    148 

Fornication : 

Punishment  for 3 IS 

Fortifications: 

Destroying  property  of   . . .      44 
Forts : 

Unlawful  presence  upon   .  .      45 
Gift  enterprises: 

See  Lotteries. 
Goods : 

Receiving  stolen,   etc 288 

"Green    goods : " 

See  Counterfeit  money. 
Gunpowder : 

See  Dynamite. 
"Hard  labor:" 

Ommission   of   words   from 

title      338 

Hostility    against    the    Govern- 
ment: 

Enlisting  in  United  States 
to  serve  in   8 

Recruiting      soldiers      etc., 

for    7 

Incest : 

Definition    of;    punishment  317 

1  ndian   reservations : 

Crimes    on,    in    South    Da- 
kota      320 

Cutting,  etc.,  timber  on   .  .      50 
Indians  committing  crimes 

on   328 

Indians : 

Punishment   of,   for   crimes 

in    Territories     328 

Insurrection: 

Inciting      against      United 

States    4 

Internal  revenue: 

Assaulting,    etc.,    officer    of     65 

Interstate    Commerce    Commis- 
sion: 
To  regulate  transportation 

of  explosives    233 

Intoxicating  liquors: 
See  Liquors. 

Invoices: 

Concealing    or    destroying, 

of  merchandise    64 

Consuls    falsely    certifying.     70 

Judges : 

Accepting  bribe 132 

Bribery  of    131 


Jurors :  Sec. 

Accepting   bribe    133 

Attempting  to  influence  by 

writing    137 

Conspiracy    to    intimidate, 

etc 130 

Intimidating,       corrupting, 

etc 135 

Kidnaping: 

Bringing  kidnaped   persons 

into  United  States   271 

Definition  of    26S 

Larceny : 

Punishment  for 287 

Letters  patent: 

Uttering,  etc.,  forged  or 
counterfeited    27 

Limitation: 

Acts    of     344 

Liquors : 

Interstate  shipment  of  in- 
toxicating; common  car- 
rier not  to  collect  pur- 
chase price  of   23!* 

Interstate  shipment  of  in- 
toxicating; delivery  to 
be  to  bona  fide  consignee  238 

Interstate  shipment  of  in- 
toxicating ;  packages 
containing,  to  be  mark- 
ed as  such    240 

Sending,  in  mails,  prohib- 
ited        217 

Lotteries : 

Importing,    etc.,   tickets   of  237 

Matter  relating  to,  non- 
mailable       213 

Postmasters      not      to      be 

agents   for    2  J  4 

Lottery   tickets: 

See  Lotteries. 

Mail  bags: 

Injuring,  etc 189 

Mail  matter: 

See  Mails. 
Mails  (see  also  Post-offices)  : 

Assaulting  carrier  of,  with 
intent  to  rob   197 

Carried  by  foreign  vessel, 
to  be  delivered  to  post- 
office    203 

Carrying  letters  out  of,  on 
post  routes   184 

Carrying  letters  out  of,  on 
vessels      185 

Carrying  letters,  etc.,  with- 
out compensation    180 

Conveyance  of,  by  private 
express     181 

Delaying,  by  ferryman    .  .  ,   202 


918 


Index. 


Mails — Continued.  Sec. 

Delivery  of,  by  master   of 
vessel  200 

Deserting    199 

Detaining,  embezzling,  etc., 
by    postmaster    105 

Foreign  vessels  to  deliver, 
before  entry  is  allowed.     204 

Fraudulent  us  of  enve- 
lopes, to  avoid  payment 
of  postage    227 

Fraudulently  increasing 
weight  of   228 

Having  in  possession 
stolen,    etc 194 

Illegal  carrying,  by  car- 
riers, etc 180 

Inclosing  higher  class,  in 
lower  class,  etc 221 

Injuring  bags  for  carrying     189 

Injuring,    destroying,    etc.     198 

Injuring  letter  box,  lock 
box,  etc 198 

Libelous,      indecent,       etc., 
envelopes,      cards,     etc. 
excluded  from    212 

Liquors  etc.,  excluded 
from     217 

Lottery  ticket,  gift  enter- 
prise, etc.,  excluded 
from     213 

Obscene,  etc.,  matter,  ex- 
cluded from   211 

Obstructing,    etc 201 

Offenses  against  foreign, 
in  transit   229 

Poisons  and  explosives  ex- 
cluded from;    exception     217 

Presenting  false  claims, 
etc.  in  relation  to    ....     224 

Robbery    of    197 

Securing  admission  of  pub- 
lications,   of,    at   second- 
class  rate,  by  fraud   .  .  .      223 

Sending,  by  private  ex- 
press          183 

Stealing,    embezzling,    etc.     194 

Transporting  persons  un- 
lawfully conveying   ....      182 

LTse  of,  to  promote  fraud.      215 

Using  for  fraudulent 
schemes,  etc 216 

Vehicles,  etc.,  claiming  to 
be  carriers  of    188 

Wearing  uniform  of  carrier 
of 187 

Maiming: 

Punishment    for 283 

Manslaughter: 

Assault  with  intent  to  com- 
mit       276 


Manslaughter — Continued.  Sec. 

Attempt  to   commit 277 

Definition  of    274 

Place  where  crime  deemed 
to  have  been  committed     336 

Punishment  for 275 

Marriage :  Sec. 
Failing    to    record    certifi- 
cates of 319 

Marshals : 

Allowing    prisoner    tc    es- 
cape       138 

Rescuing  body  of  executed 

offender  from 144 

Members  of  Congress: 

Being    interested    in    con- 
tracts       114 

Offering   bribe,   etc.,   to...      Ill 
Officials  making  contracts 

with 115 

Procuring  contracts,  offices 

etc 112 

Receiving       compensation 

for     official     services...      110 
Receiving        compensation 
for    services    in    claims, 

etc 113 

Soliciting      or      accepting 

bribe HO 

Soliciting      or      receiving 
political  contributions . .      118 
Merchandise: 

Admitting,    to    entry    for 

less  than  legal  duty 68 

Securing  entry  of,  by  false 

samples 69 

Military  Reservations: 

Unlawful  presence  upon..        54 
Misdemeanor: 

definition  of 335 

Misprision  of  felony; 

See   Felony. 
Misprision  of  treason: 

See   Treason. 
Money  Jrders. 
.     Counterfeiting 218 

Issuing,  without  payment, 
by  postmasters 210 

Presenting     forged,     etc., 

for  payment 218 

Murder : 

Assault  with  intent  to  com- 
mit          276 

Attempt  to  commit 277 

Body  of  executed  offender 
may  be  delivered  to  sur- 
geon   for   dissection....      331 

Definition   of 273 

Place  where  crime  deemed 
to  have  been  committed     336 

Punishment  for 275 


Index. 


919 


Murder — Continued.  See. 

Verdiet  for  crime  of,  may 

be  qualified    330 

Mutiny : 

Inciting,  by  crew  of  vessel, 
etc 292 

Contr  buttons  by,  to  elec- 
tions         83 

National-bank  notes: 

Connecting  different  parts 
of 162 

Counterfeiting,  altering, 
etc 149 

Imitating,  printing  adver- 
tisements on,  etc 175 

Mutilating  or  defacing..  . .      176 
National  currency: 

See  National-bank    notes. 
Naturalization: 

Counterfeiting,   etc.,   signa- 
ture, etc.,  relating  to . .        76 

Denying  citizenship  after.       77 

False  swearing  in  proceed- 
ings   relating    to 80 

Jurisdiction  in  proceedings 

for 81 

Using  false  certficates  of.       79 
Newspapers : 

Detention,  etc.,  of,  by 
postmasters    196 

Nitroglycerin: 

Shipping,  unlawfully,  in 
foreign  and  interstate 
commerce 234 

Notes : 

Issue  of,  for  less  sum  than 

$1,  prohibited 178 

Oaths : 

Counterfeiting,  relating  to 
naturalization  of  aliens       76 

Officer  making  false  ac- 
knowledgment with  re- 
spect to  contracts,  etc.,       31 

"Obligation  or  other  se- 
curity of  the  United 
States"  (See  also  Se- 
curities) : 

Definition  of  phrase 147 

Obscene  literature: 

See  under  Publications  and 
Mails. 
Office : 

Disqualification  for  hold- 
ing, of  honor,  etc 26 

Officers : 

Accepting  bribe 117 

Aiding  in  trading,  etc.,  in 

obscene  Publications  etc.     102 
Conversion  of  public  mon- 
eys   by 95 


Officers — Continued  Sec. 

Disbursing — 

Converting,     etc.,     pub- 
lic   money    to    own 

use,  etc 87 

Trading        in        public 

funds,  etc 103 

Embezzlement   by 94 

Extortion  by 85 

Failing  to  :  lake  returns  or 

reports 83 

Falsely  pretending  to  be, 
of   United   States 32 

Giving  out  advance  infor- 
mation respecting  crop 
reports 123 

Issuing  false  statistics  re- 
specting  crop   reports..      124 

Making  contracts  in  excess 
of    appropriations     98 

Making  false  certificates, 
etc 106 

Obstructing,  etc.,  in  serv- 
ing process 140 

Prosecuting  claims  against 
United  States 109 

Receipting  for  larger  sums 
than    are    paid 86 

Receiving  political  contri- 
butions       118 

Pacific  islands: 

Selling  arms,  etc.,  to  na- 
tives of   308 

Pension   agents : 

Receiving  illegal  fees   .    .  .      108 

Peonage    (see  also  Slaves)  : 

Holding,  itc,  persons  in .  .     269 

Perjurj  : 

Definition   of 125 

Subornation   of 126 

Piracy: 

Accessories  to 334 

Seizure  of  persons  to  make 

slaves  of,  is  act  of ... .     247 
By     subjects     of     foreign 

state    305 

Under     color     of     foreign 

commission.    ...    304 

Under  the  law  of  nations.     290 

Pitch : 

See  Turpentine. 

Poisons : 

Sending,  improperly,  in  the 

mails   217 

Political    contributions: 

By  corporation  or  nation- 
al banKs 83 

Immunity,  from,  by  offi- 
cers, employees,  etc.   . .  .      120 


920 


Index. 


Political    Contributions — Continued. 

Sec. 

Members  of  Congress,  offi- 
cials, etc.,  soliciting  or 
receiving 118 

Officials,  etc.,  not  to  give 
to  Members  of  Ccngress, 
other  officials,  etc 121 

In  public  buildings,  pro- 
hibited       119 

Polygamy : 

Definition  of;   punishment     213 
Post-offices    (see  also  Mails)  : 

Breaking  into  and  entering      192 

Conducting  fraudulent 
schemes,  by  use  of   ....     216 

Conducting,  without  au- 
thority          179 

Stealing,  etc.,  mail  locks, 
etc.,    of 191 

Stealing,  etc.,  property  of     190 
Postage  stamps: 

Counterfoil        etc 213 

Failure  to  cancel,  by  post- 

tc 220 

Foreign  —  Counterfeiting, 

master 209 

Unla  ful  selliug,  etc.,  by 
postmaster 208 

Using,  seilir.g,  etc.,  c  l- 
celed,  20 

Postal  cars: 

Unlawfuly  entering 193 

Postal  service  (see  also  Mails)  : 

Definition  of  phrase 231 

Employees  of,  not  to  be  in- 
terested in  contracts  for 
carrying  mails,  etc 226 

Employees  of,  to  take  oath     230 

Wearing  uniform  of  letter 

carrier    in 187 

Postmasters : 

Collecting  unlawful  post- 
age      207 

Detaining,  Embezzling,  etc. 
mail  matter 195 

Detaining,  Embezzling, 
etc.,  newspapers 196 

Failing     to     account     for 

postage,  etc 209 

Forging  signature  of  ...  .      218 
Illegally    approving    bond, 

etc 222 

Issuing  money  order  with- 
out   payment     210 

Making   false   returns,   etc.  206 
Not  to  act  as  lottery  agents  214 
Unlawful  selling,  pledging, 
etc.,    of   postage   stamps, 
etc 208 


Powers   of  attorney:  Sec. 

Altering,        counterfeiting, 

etc 29 

Unlawfully  taking  or  carry- 
ing away,   etc 40 

President: 

Power   of,   to   pardon    ....   327 
Principals : 

Definition  of    332 

Prisoners : 

Allowing,  tc  escape   138 

Rescuing,   etc (    141 

{    143 
Rescuing,   at  executions    . .    142 
Prize    fights : 

Prohibited    320 

Prize    property: 

Fraudulently  disposing  of, 
etc 38 

Proposals : 

Altering,  counterfeiting, 
etc 28 

Having  in  possession  al- 
tered, etc.,  with  intent 
to    defraud 28 

Uttering  or  publishing  al- 
tered,  etc 28 

Public  domains: 

See  Public   lands. 

Public  lands: 

Chipping,    etc.,    timber    on, 

to  obtain  pitch,  etc.    ...  51 

Cutting,  etc.,  timber  on.  .  .  49 
Defacing,    destroying,    etc., 

survey  marks  on 57 

Destroying  property  on.   .  .  56 
Failing  to   extinguish   fires 

started   on    53 

Grazing  stock  on,  etc.    ...  56 
Hunting  birds,  etc.,  on  pre- 
serves   84 

Interfering  with  sales  of.   .  59 

Preventing  surveys  of.    ...  58 

Setting  fire  to  timber  on.   .  52 

Public  moneys: 

Banker,  etc.,  unlawfully 
receiving,  using,  etc.    ...      96 

Conversion,  etc.,  of  by  cus- 
todians          89 

Conversion,  etc.,  of,  by  dis- 
bursing  officers 87 

Conversion  of;  what  con- 
stitutes       95 

Embezzlement  of,  by  in- 
ternal revenue  officers.    .      97 

Failure  of  officers,  etc.,  to 
render  accounts  of 90 

Failure  to  make  deposit  of.     91 

Failure  to  safely  keep  by 
Treasurer,   etc 88 


Index. 


921 


Public  Money — Continued.  Sec. 

Proceedings  to  prove  em- 
bezzlement of 93 

Refusing  to  pay  draft,  etc., 
of  accounting  officer  for.     94 
Public  property: 

Embezzlement  of 47 

Officers   trading  in 103 

Receiving,    etc.,    embezzled.     48 
Public  records: 

Altering,  counterfeiting, 
etc 28 

Destroying,  concealing,  etc., 
128 

Destroying,  concealing,  etc., 
by   custodian 129 

Having  in  possession  al- 
tered, etc.,  with  intent 
to   defraud 28 

Uttering  or  publishing  al- 
tered,   etc 28 

Publications : 

Aiding  in  trading,  etc.,  in 
obscene,    etc 102 

Circulation  of  obscene,  in 
Territories 312 

Libelous,  indecent,  etc., 
matter  on  envelopes, 
wrappers,  etc.,  nonmail- 
able  212 

Obscene,    etc.,   nonmailable.  211 

Shipment  of  obscene,  etc., 
in  foreign  and  interstate 

commerce 245 

"Pugilistic   encounters : " 

Definition  of  phrase 321 

Rape: 

Assault  with  intent  to  com- 
mit    276 

Body  of  executed  offender 
may  be  delivered  to  sur- 
geon for  dissection 331 

By  Indians,  upon  an  In- 
dian    328 

Punishment  for 278 

Verdict   for   crime  of,  may 

be   qualified 330 

Rebellion : 

Inciting,  against  United 
States 4 

Receipts: 

Altering,  counterfeiting, 
etc 29 

Having  in  possession  al- 
tered, etc.,  with  intent 
to    defraud 29 

Uttering  or  publishing  al- 
tered,   etc 29 

Revenue  officers: 

Admitting  goods  to  entry 
at  less  than  lej;al  duty.  .     68 


Revenue  Officers — Continued.       Sec. 

Bribery   of 67 

Falsely   representing  to  be     66 
Rescuing,      etc.,      property 

detained    by 71 

Rights : 

Accrued — 

Not    affected    by    repeals 

342 

Robbery : 

Accessories    to     334 

Assault  with  intent  to  com- 
mit        276 

By  crew  of  piratical  vessels  302 
Of     personal     property     of 

United     States    46 

Punishment   for    284 

Of    trains,    etc.,    in    Terri- 
tories        322 

Seamen : 

Aiding   or   enticing   to    de- 
sert      42 

Harboring     or     concealing 

deserted     42 

Recruiting,  to  serve  against 

United  States    7 

Searches : 

Assaulting,      etc.,      person 

authorized  to  make   ....      65 
Authority  to  make,  to  find 
counterfeit  coins,  etc.    .  .    173 

Securities : 

Circulating,  of  expired  cor- 
porations        174 

Connecting  different  parts 
of      162 

Counterfeited,  to  be  for- 
feited         172 

Counterfeiting,  of  foreign 
governments     156 

Dealing  in  counterfeited, 
altered,  etc 154 

Forging,  altering,  etc 148 

Having  in  possession 
counterfeited,  or  foreign 
governments     1 60 

Having  unlawful  posses- 
sion of  plates  for  print- 
ing, of  foreign  govern- 
ments         161 

Having  unlawful  posses- 
sion of  tools  for  printing, 
etc 153 

Imitating,  printing,  adver- 
tisements  on,   etc 177 

Making,  etc.,  any  print, 
etc.,  in  similitude  of   ...    150 

Making,  selling,  using,  etc., 
plates  to  print  without 
authority      150 

Passing,  etc.,  counterfeited, 


922 


Index. 


Securities — Continued.  Sec. 

of    foreign    governments,  157 
Passing,     publishing,     sell- 
ing,    etc.,     counterfeited.  151 
Secreting,    etc.,    tools    and 

materials  for  printing  . .    155 
Taking       impressions       of 
tools,  etc.,  used  in  print- 
ing,  stamping,   etc 152 

Using   mails    to    distribute 

counterfeited     215 

Seizures: 

Assaulting,      etc.,      person 
authorized  to  make    ....      65 
Shanghaiing  {see  also  Vessels)  : 

What  constitutes    82 

See  Slaves. 
Slaves : 

Bringing,        into        United 

States    248 

Confining  or   detaining,   on 

board   vessel    246 

Disposal  of,  found  on  board 

vessels     262 

Equipping  vessels  to  trade  (    249 

in     )    254 

Receiving,  on  board  ves-  j    253 

sels     {    257 

Seizing,  on  foreign  shore..   247 
Seizure  of   vessels    trading 

in      260 

Serving  on  vessels  trading 

in     252 

Transporting,   etc 250 

Vessels   hovering  on  coast  J    251 

with,  on  board   \    258 

Soldiers : 

Aiding  or  enticing  to  desert     42 
Harboring     or     concealing 

deserted    42 

Recruiting  to  serve  against 

United  States    7 

South    Dakota : 

Crimes    committed    on    In- 
dian reservations  in ... .   329 
States : 

Laws  of,  adopted  for  pun- 
ishing wrongful  acts,  etc.  289 
Steamboats : 

Inspector    of,    receiving    il- 
legal fees    107 

Stocks : 

Public- 
Attempting        to        have 

transferred,   falsely    .  .      33 
Falsely  personating  hold- 
er of    33 

Obtaining  dividends  from, 
by  false  representa- 
tions         34 


Telegraph :  gee 

Destroying    or     interfering 

with     GO 

Telephone: 

See  Telegraph. 
Territories: 

Circulation        of       obscene 

books,  etc.,  in   312 

Conspiracy    to    induce    offi- 
cer of  United   States   to 

leave    21 

Punishment  of  Indians  for 

crimes   in    328 

Traffic    in,    in    articles    to 
produce  abortion,  etc.    ..    312 
Timber : 

Chipping,    etc.,    on    public 
lands,    to    obtain    pitch, 

etc 51 

Cutting,     etc.,     on     public 

lands     49 

Cutting,    etc.,    on    reserva- 
tions          50 

Setting    fire   to,    on    public 

lands     52 

Treason : 

Definition    of     1 

Misprison  of    3 

Punishment   for    2 

Turpentine : 

Chipping,     etc.,     trees     on 
public  lands  to  obtain..      51 
Vessels : 

Apprehension  of  officers  of, 

engaged   in   slave   trade.   263 
Arm«)d — 

Engaging     in     hostilities 

against  friendly  power     16 
Instructions    to,    in    re- 
lation   to    slave    trade  267 
Arming,    to   cruise   against 

United  States    303 

Attacking,    with    intent   to 

plunder     298 

Breaking  and  entering,  etc.  299 
Confining      o  r      detaining 

slaves  on  board  of   246 

Conspiracy  to  cast  away . .  296 
Currupting  master  of  ....  307 
Counterfeiting    registry    or 

enrollment   of    72 

Detaining   persons  to    serve 

on     82 

Detention    of,   having   war- 
like  cargo    17 

Disposal  of  persons  held  as 
slaves  on    262 

Equipping,    to    trade    in  £  249 

slaves    |  254 

Foreign — 

Augmenting    force    of...  12 


Index. 


923 


Vessels,    foreign — Continued        Sec. 
To  deliver  mails  to  post- 
office    203 

Enlisting  to  serve  on...      10 
Enlistment    of    transient 
aliens     on     armed,     in 
time  of  peace,  not  for- 
bidden           18 

Entry  not   allowed  until 
delivery     of     mail     on 
board  to  post-office    .  .   204 
Fitting   out   and   arming     11 
Proceedings    against,    for 
offenses  against  neu-  C      14 

trality     1       15 

Forfeiture  of,  engaged  in  C    256 

slave  trade    1    259 

Hovering   on   coast   with  j    251 
slaves  on  board  of  . . .  {    258 
Inciting   mutiny    on    board 

of     292 

Inducing,    by   threats,   etc., 

persons  to  serve  on   ... .     82 
Laying    violent    hands    on 

commander    of    294 

Maltreatment    of    crew    of, 

by  masters,  etc 291 

Master  of,  abandoning  crew 

on    foreign   shore    295 

Master    of,    running    away 

with,  etc 306 

Master  of,  seducing  female  280 
Masters,    owners,    etc.,    of, 
liable    for    loss    of    life, 
etc.,    through    negligence  282 
Owner  destroying  at  sea . .   300 
Owners  of,  suspected  of  be- 
ing    engaged     in      slave 
trade,  to  give  bond   ....   266 


I  Vessels,  Passenger — Continued.   Sec. 
Passenger — 

Not    permitted    to    carry 
explosives ;     exception .   322 
Plundering,  in  distress,  etc.  297 
Receiving,  etc.,  persons  to  (    253 

make  slaves  of   (    257 

Eemoval     of    persons    held 

as  slaves  on  board  of . . .   264 
Robbery  by  crew  of  pirat- 
ical        302 

Seizure,    of,    engaged    in  (    260 

slave   trade    (    261 

Serving     on,     engaged     in 

slave   trade    252 

Setting  fire  to,  etc.,  at  sea  301 
Usurping   command   of,   by 

crew,  etc 293 

Uttering  o  r  publishing 
counterfeited,  etc.,  reg- 
istry,  etc.,   of    72 

"Vessels  of  the  United  States." 

Phrase   defined    310 

Vice-consuls : 

See   under   Consuls. 
Weather  forecasts: 

Issuing  or  publishing  coun- 
terfeit           61 

Whipping: 

Punishment    by,    abolished  325 
Witnesses : 

Accepting    bribe     134 

Conspiracy  to   intimidate, 

etc 136 

Intimidating,      corruption, 

etc 135 

Writs : 

Altering,  stealing,  etc 127 

Resisting  service  of   140 


Containing  a  reference  to  all  laws  of  a  general  nature,  permanent  in 
character,  in  force  December  1,  1909,  having  penal  provisions  not 
properly  separable  from  the  administrative  provisions,  not  contained 
in  the  Criminal  Code,  but  embraced  in  the  general  revision  of  the* 
Laws  of  the  United  States. 


TITLE    II  . 

THE  CONGRESS. 

Chapter  Six. — The  Library  of  Congress. 
Stealing  or  injuring  books  of  Library  of 

Congress    .19  June,  1878;  20  Stat,  171. 

Chapter     Seven. — Congressional     investiga- 
tions. 
Witness  refusing  to  testify  in  congres- 
sional   inquiry   R.  S.,  s.  102. 

Chapter  Eight. — Contested  elections. 

Witnesses    refusing   to    testify    in    con- 
tested-election  case   R.  S.,  s.  116. 

Failure  to  deliver  up  papers  in  contested- 
election   case    R.  S.,  s.  123. 

TITLE    VI. 


THE  DEPARTMENT  OF  THE  TREASURY. 


Chapter  One. — The  Department. 

Officers  in  Treasury  Department  engag- 
ing in  trade,  etc.   R.  S.,  s.  243. 

Clerks  in  Treasury  Department  trading 
in  debts  or  funds  of  any  State  or 
United    States   R.  S.,  s.  244. 

TITLE     XII. 

THE  DEPARTMENT  OF  COMMERCE  AND  LABOR. 

Chapter  Six. — The  Bureau  of  Statistics. 
Person     transporting     commodities      to 
foreign    countries    failing    to    deliver 
manifest  to  collector  of  customs 3   Mar.,   1893;   27    Stat,   689. 

TITLE    XIV. 

THE  CIVIL  SERVICE. 

Chapter   One. — Appointments,   qualifications, 
duties,  and  payments  of  clerks 
and  employees. 
Officers  and  employees  violating  duties  f  16  Jan.,  1883,  s.  7 ;  22  Stat., 
concerning  examination  of  applicants  |      405. 


926  Appendix. 

TITLE    XV. 

ESTIMATES  AND  APPROPRIATIONS. 

Chapter  Tzuo. — Appropriations. 

Expenditures  not  to   exceed  appropria- 
tions; voluntary  service,  etc.,  or  em- 
ployment   of    unauthorized    personal  S  R.  S.  s.  3679. 
service  prohibited 1  27  Feb.,   1906;   34  Stat.,  49. 

TITLE    X VI  . 

THE  JUDICIARY. 

Chapter  Three. — District  courts;  Removal  of 
causes. 
Clerk  of    state   court  refusing   to   give  {  3  Mar.,  1875,  s.  7 ;   18   Stat., 
copy  of  record  1      72. 

Chapter     Four. — District     court;     Miscella- 
neous provisions. 
Receiver    failing    to    properly    manage  f  13  Aug.,  1888,  s.  2 ;  25  Stat., 
property    _    1      436. 

Chapter    Eleven. — District    attorneys,    mar- 
shals,    clerks,     commissioners, 
and  stenographers. 
Clerk  of   court  refusing   to  make   cer- 
tificate     22  Feb.,  1875,   s.   6 ;   18   Stat.. 

334. 

Chapter   Twelve. — Pay   and    allowances    of 
court  officers,  jurors  and  wit- 

Marshal,  attorney,  or  other  officer  ac-  f  28  May,  1896,  s.  18 ;  29  Stat., 
cepting  illegal  fee  1      183. 

Chapter  Twenty. — Extradition. 

Opposing,  etc.,  agent  of  United  States 
appointed  to  receive  from  foreign 
government  person  accused  of  crime 
within  jurisdiction  of  United  States___R.  S.,  s.  5277. 

Resisting  agent  of  State  or  Territory 
appointed  to  receive  person  accused  of 
crime  in  another  State  or  Territory R.  S.,  s.  5279. 

TITLE    XVII. 

THE  ARMY. 

Chapter  Eleven. — Articles  of  war. 

Civilian   witness    failing   to    obey    sub-  \  2  Mar.,  1901,  s.   1 ;   31   Stat., 
poena  of  court-martial 1      950. 

TITLE    XX  . 

THE  NAVY. 

Chapter   Ten. — Articles  for  the  government 
of  the  navy. 
Witness  refusing  to  appear  or  to  tes-  f  16  Feb.,  1909,  s.  12 ;  35  Stat., 
tify  before  court-martial  or  court  of  j      622. 
inquiry  of  the  navy [ 


30  June,  1902,  s.  2 ;  32  Stat, 
547. 


Appendix.  927 

TITLE    XXI. 

DIPLOMATIC   AND   CONSULAR    OFFICERS. 

Chapter  Two. — Consular  officers. 

Consular  officer  accepting  appointment 
from  foreign  country  as  administra- 
tor and  failing  to  give  bond  or  ac- 
count  for  moneys    

Consular  officer  exacting  excessive  feesR.  S.,  s.  1716. 

Consular  officer  making  false  oath  in  ac- 
counting  for   fees    __ R.   S.,   s.   1728 

Consular  officer  neglecting  duty  toward 

seamen ;   corrupt  conduct  of    R.   S.,  s.  1736. 

Consular  officer  making  false  certificate 
of   property   R.  S.,  s.  1737. 

Chapter  Three. — Provisions  common  to  dip- 
lomatic and  consular  officers. 
Perjury  before  consular  officer,  or  forg- 
ing seal  or  signature  of  such  officer_R.   S.,  s.   1750. 

Embezzlement  by  consular  officer R.  S.,  s.  1734. 

21    Dec,    1898;    30    Stat.    771 

TITLE    XXII. 

THE  PUBLIC  LANDS. 

Chapter  Three. — Registers  and  receivers. 

Witness    refusing  to   appear  or  testify  f  31  Jan.,  1903,  s.  3 ;  32   Stat., 

before  register  or  receiver  of  land  of-  \      790. 

fice  _   

Witness   refusing  to   appear   or   testify  (  31  Jan.,  1903,  s.  4 ;  32  Stat., 

before  officer  taking  deposition \      790. 

Chapter  Five. — Homesteads. 

Making  false  affidavit  before  command- 
ing officer  by  person  in  military  or 
naval   service   R.  S.,  s.  2293. 

Making    false   affidavit    before    United  (  R.   S.,  s.  2294. 

States   commissioner   \  4  Mar.,  1904 ;  33  Stat.,  59. 

Officer  demanding  excessive  fees  for  en-  \  R.  S.,  s.  2294. 

tries  and  for  final   proof   1  4  Mar.,  1904 ;  33  Stat.,  59. 

Chapter  Six. — Mineral  lands. 

Citizens   of    certain    States    and    Terri- 1  3  June,  1878,   s.  3 ;   20   Stat., 
tories  cutting  timber   for  other  than  \      89. 
specified    purposes    J 

Chapter  Eight. — Timber  and  stone   lands. 

Swearing  falsely  to  application  for  tim-  S  3  June,   1878,  s.   2 ;  20   Stat., 

ber  or  stone   land  1      89. 

Unlawfully    cutting    timber    on    public 

land   _    3  June,   1878,  s.  4;   20   Stat, 

90. 

Chapter  Thirteen. — Nation  forests. 

Rules  concerning  the  use  and  occupancy 
of  national  forests,  and  penalties  for 
violation 4  June,  1897;  30  Stat,  35. 


92'8  Appendix. 

Chapter  Fifteen. — Unlawful  inclosures.  [  25  Feb.,  1885,  s.  4 ;  23  Stat., 

Inclosing  public  lands  without  title ;  ob-  ]      322. 

structing  settlement  of  or  transit  over     10  Mar.  1908,  s.  1 ;  35  Stat., 

40. 

Chapter   Nineteen. — Public    lands    in    Okla- 
homa. 

Fraudulently  settling  on  public  lands 2  May,  1890,  s.  24;  26  Stat., 

92. 

Chapter   Tzventy. — Public  Lands  in  Alaska. 

Collecting  toll  unlawfully  in  Alaska 11  May,  1898,  s.  6;  30  Stat., 

410. 


TITLE    XXIII. 

DUTIES  UPON  IMPORTS. 

Importing  neat  cattle  and  hides,  etc. 5   Aug.,   1909,   ss.   12,   13 ;   36 

Stat,   86. 
Falsely    marking    or    removing    or    altering 

marks  or  brands,  on  imported  articles 

or  packages  5  Aug.,  1909,  s.  8 ;  36  Stat.,  86. 


TITLE    XXIV. 

COLLECTION  OF  DUTIES. 

Chapter  Two. — Qualifications,  pay,  and  du- 
ties of  officers. 
Officer  failing  to  keep  table  of  fees  post- 
ed up   R.    S.(    s.    2635. 

Bribery  of  customs  officer  or  employee__5  Aug.,  1909,  s.  28;  36  Stat, 

103. 

Officer  demanding  or  receiving  greater  f  R.  S.,  s.  2336. 

fee,  etc.,  than  allowed  by  law j  5  Aug.,  1909,  s.  28  36 ;  Stat., 

I      103. 
Inspector,  weigher,  gauger,  or  measurer 

receiving  fee,  etc.,  other  than  allowed 

by  law  _ , __R.    S.,    s.    2637. 

False  certification  of  shipment  by  in- 
spector or  other  officer R.  S.,  s.  2637. 

Customs  officers  owning  vessels  or  en- 
gaging in  importation R.  S.,  s.  2638. 

Customs  officers    failing  to   render  ac-  f  R.  S.,  s.  2639. 

counts  of  expenditures j  31  July,  1894,  s.  19 ;  28  Stat, 

[      210. 

Customs  officers  failing  to  keep  and 
render  accounts  and  records  of  trans- 
actions    R.  S.,  s.  2640. 

Chapter  Three. — Revenue-Cutter  Service. 
Carrying  or  hoisting  pennant  or  ensign 
of   revenue   service  by  vessel    not  in 
service;  master  liable R.  S.,  s.  2764. 


Appendix.  929 

Chapter  Four. — Entry  of  Merchandise. 

Vessel  bound  for  port  of  delivery  fail- 
ing to  pay  duties,  etc.,  at  port  of  en- 
try; master  liable __R.  S.,  s.  2772. 

Vessel  departing  from  port  of  arrival 
before  making  report  of  entry;  mas- 
ter liable   , R.  S.,  S.  2773. 

Master  failing  to  make  report  of  arrival 

of  vessel  at  port R.  S.,  s.  2774. 

Master  of  vessel  failing  to  make  special 

report  of  spirits  and  wines R.  S.,  s.  2775. 

Master  neglecting  to  obtain  copy  of  re- 
port from  collector R.  S.,  s.  2784. 

f  R.  S.,  s.  2797. 
Vessel  having  more  sea  stores  than  in -{  3  Mar.,  1897,  s.  17;  29  Stat, 

entry;   master  liable  [      691. 

Concealing  dutiable  articles  in  baggage R.  S.,  s.  2802. 

Master  failing  to  have  correct  manifest — R.  S.,  s.  2809. 
Master  failing  to  produce  manifest  upon 

demand  of  proper  officer R.  S.,  s.  2814. 

Customs  officer  failing  to  certify  on  back 

of  manifest  the  production  thereof____R.  S.,  s.  2814. 
Master  of  vessel  failing  to  mail  copy  of  1 

manifest  to  Auditor  for  Treasury  De-  \-  2  Mar.,  1895,  s.  9 ;  28   Stat., 

partment   j       808. 

Master  failing  to  deliver  duplicate  mani-  "j  R   S.,  s.  2802. 

fests  of  merchandise  for  Mississippi  [  16  June,  1880 ;  21  Stat.,  283. 

River,    etc.,    ports    J 

Master  failing  to  deliver  manifests  for]  R.  S.,  s.  2822. 

merchandise    for    Mississippi    River,  ]■  16  June,  1880 ;  21  Stat.,  283. 

etc.,  ports  on  arrival  at  port  of  entry J 

Master     failing     to     deliver     duplicate 

manifests  of  merchandise  for  ports  in 

district  of  New  Orleans  R.  S.,  s.  2823. 

Master  failing  to  deliver  manifests  of 
merchandise  for  ports  in  district  of 
New   Orleans   on   arrival  at  port   of 

entry — R.  S.,  s.  2823. 

Master  failing  to  deliver  duplicate  mani- 
fests on  departure  from  port  of  entry — R-  S.,  s.  2828. 
Master   failing  to   deliver  manifests   to 

surveyor  of  port  on  arrival --R.  S.,  s.  2829. 

Vessel  bound  for  Natchez  and  Vicksburg 

violating   revenue   laws    — R-  S.,  s.  2832. 

Master  failing  to  deposit  manifest --R-  S.,  s.  2834. 

22  June,  1874,  s.  2;   18  Stat., 

186. 
3  Mar.,  1897,  s.  15;  29  Stat., 
691. 

Master  refusing  to  receive  inspector R.  S.,  s.  2834. 

22  June,  1874,  s.  2;  18  Stat., 

186. 
3  Mar.,  1907,  s.  15;  29  Stat, 
691. 

Making  false  statement  in  declaration 5  Aug.,  1909,  s.  28;  36  Stat., 

95. 
59 


930  Appendix. 

Chapter  Four — Entry  of  Merchandise — Con 

[  R.  S.,  s.  2864. 
Making  false  entry  of  imported  merchan-  \  5  Aug.,  1909,  s.  28  ;  36  Stat., 
dise  I      97. 

Smuggling  merchandise   . R.  S.,  s.  2865. 

Making  or  uttering  false  or  forged  in- 
voice   R-  S.,  s.  2865. 

Chapter  Five. — Unlading. 

Unlading  without  permit R-  S.,  s.  2867. 

Transferring  unlawfully  from  one  ves- 
sel   to    another    R-  S.,  s.  2868. 

Unloading  of  merchandise  at  unlawful 

hours R-  S.,  s.  2873. 

Inspector  neglecting  duties __R.  S.,  s.  2877. 

Landing  of  wines  or  spirits  without  in- 
dorsement   or   permit    R.  S.,  s.  2883. 

Obliterating,  etc.,  inspection  marks,  etc.__R.  S.,  s.  2886. 

Sealing,  etc.,  empty  cask,  etc.,  before  ob- 
literation of  inspection  marks R.  S.,  s.  2886.    . 

Merchandise    missing   or   omitted    from 

manifest    R.  S.,  s.  2887. 

Chapter  Six. — Appraisal. 

Refusing  to  testify  or  swearing  falsely  f  5  Aug.,  1909,  s.  28 ;  36  Stat., 
before  appraiser  |      100. 

Chapter   Seven. — The    bond   and   zvarehouse 
system. 

f  1  Mar.,  1879,  s.  12 ;  20  Stat., 

Failing  to  remove  or  destroy,  etc.,  stamps  I      342. 

on  packages  or  casks  that  had  contain-  \  28  May,  1880,  s.  12 ;  21  Stat., 

ed  imported  liquors I       148. 

f  1  Mar.,  1879,  s.  13;  20  Stat., 

Selling  or  having   in  possession  empty  j      343. 

cask    or    package    with    undestroyed  i  28  May,  1880,  s.  13 ;  21  Stat., 
stamp  affixed [      148. 

Altering,  defacing,  or  obliterating  mark 
of  revenue  officer  on  package  of  ware- 
housed merchandise R.   S.,  s.   2985. 

Unlawfully  opening  warehouse __R.   S.,  s.   2986. 

Fraudulently    removing    or    concealing 

warehoused   merchandise R.  S.,  s.  2987. 

Failure  to  transport  and  deliver  mer- 
chandise from  port  in  one  collection 
district  to  port  in  another  district  — __R.  S.,  s.  3001. 

Relanding  merchandise  exported  to 
Mexico  or  to  British  North  America 
provinces ___R.  S.,  s.  3008. 

Chapter  Eight. — Immediate  transportation  in 
bond  to  inland  ports. 
Opening,  breaking,  etc.,  any  car,  vessel, 
etc.,  containing  merchandise  delivered 

for   transportation   R.  S.,  s.  2998. 

Knowingly  receiving  merchandise  un- 
lawfully removed  from  car,  vessel,  etc.__R.  S.,  s.  2998. 


Appendix.  931 

Chapter  Ten. — Drawback. 

Relanding  goods  entered  for  drawback—  (  R.  S.,  s.  3049. 

(  24   July,   1897 ;    30   Stat.,   195. 
Making  false  entry  for  benefit  of  draw- 
back    R.  S.,  s.  3050. 

Chapter  Eleven. — Enforcement  of  customs 
laws. 

Person  in  charge  of  beast  or  vehicle  re- 
fusing to  allow  search __R.  S.,  s.  3062. 

Master  obstructing  or  hindering  officer 

from  boarding  vessel R.  S.,  s.  3068. 

Articles  separate  from  cargo  missing,  or 
seals  broken  on  arrival  at  port  of  en- 
try; master  liable R.  S.,  s.  3069. 

Unlawfully  breaking  locks  and  fasten- 
ings   - R.  S.,  s.  3070. 

Refusing    to    assist    officer    in    making 

search -R.  S.,  s.  3071. 

Importing  merchandise  contrary  to  law_--R.  S.,  s.  3081. 

Knowingly  buying,  selling,  receiving,  etc., 

merchandise  imported  contrary  to  law — R.  S.,  s.  3081. 

Officer  receiving  part  of  informer's  fee,  (22  June,  1874,  s.  7;  18  Stat, 

except  in  smuggling  cases ]      187. 

f  22  June,  1874,  s.  19;  18  Stat. 

Officer   offering   to   compromise   claims  •{      190. 
for  fines,   etc.   [22  Jan.,   1875;   18   Stat,  303. 

Chapter  Twelve. — Commerce  with  contiguous 
countries. 

Master  or  other  person  failing  to  de- 
liver manifests  of  goods  from  con- 
tiguous   territory    R.  S.,  s.  3099. 

Owner,  master,  etc.,  of  vessel  failing  to 
proceed  to  places  of  destination  named 
in   manifest    R.  S.,  s.  3104. 

Unauthorized  person  breaking,  etc.,  seal- 
ed   packages,    etc.    R.  S.,  s.  3105. 

Receiving  or  depositing  unlawfully  im- 
ported merchandise  in  building  on 
boundary    line    R.  S.,  s.  3108. 

Shipping  sea  stores  in  excess  of  amount 
necessary R.  S.,  s.  3112. 

Owner  failing  to  report  saloon  stores R.  S.,  s.  3113. 

Unlading  merchandise  taken  from  one 
port  in  United  States  to  another  in 
other  than  specified  hours R.  S.,  s.  3120. 

Masters  of  vessels  engaged  in  foreign 
and  domestic  trade  on  northern,  etc, 
frontiers,  etc.,  failing  to  observe  rules 
in  R.  S.,  ss.  3116  to  3124,  inclusive R.  S.,  s.  3125. 

Registered  vessels  touching  at  foreign 
ports  failing  to  observe  laws  concern- 
ing manifests  and  report  and  entry  of 
vessels    R.  S.,  s.  3126. 

Master  of  vessel  failing  to  observe  cer- 
tain rules  of  Secretary  of  Treasury 
concerning  entry  of  vessels  laden  with 
products  of  British  North  America 
provinces    R.  S.,  s.  3129. 


932  Appendix. 

TITLE    XXV. 

INTERNAL  REVENUE. 

Chapter  One. — Officers. 

Internal-revenue  officers  making  false 
statement  or  failing  to  render  state- 
ment of   fees R-  S.,  s.  3158. 

fR.  S.,  s.  3167. 

Internal-revenue   officers   disclosing  op-  \  28  Aug.,  1894,  s.  34 ;  23  Stat., 
erations  of  manufacturers,  etc. [      557- 

Internal-revenue   officers   or  agents  be- 
coming   interested    in    certain    manu-  f  R.  S.,  s.  3168. 
factures  i  1   Mar.,  1879,  s.  2;  20  Stat, 

Certain     offenses     of     internal-revenue  [      329. 

officers:  , 

fR.  S.,  s.  3168. 

Being  guilty  of  extortion,  etc.,  under  \  1  Mar.,  1879,  s.  2 ;   20   Stat., 

color  of  law l      329. 

Demanding    or   receiving    other   or  I  R.  S.,  s.  3168. 
greater  fees  than  those  allowed  by  •{  1   Mar.,  1879,  s.  r  ;  20   Stat., 

law I      329. 

fR.  S.,  s.  3168. 
Neglecting    to   perform   duties    en-  -j  1   Mar.,  1879,  s.  2 ;  20  Stat., 

joined  by  law I      329. 

I  R.  S.,  s.  3168. 
Conspiring  of  colluding  to  defraud  •{  1  Mar.,   1879,  s.  2 ;  20   Stat., 

the  United  States [      329. 

fR.  S.,  s.  3168. 
Making  opportunity  for  person  to  -J  1  Mar.,  1879,  s.  2 ;   20  Stat., 

defraud  the  United  States j      329. 

fR.  S.,  s.  3168. 
Enabling  other   person   to   defraud  -{  1  Mar.,   1879,  s.  2 ;   20  Stat., 

the  United  States [      329. 

Permitting  violation  of  law R.  S.,  s.  3168. 

1  Mar.,  1879,  s.  2;  20   Stat, 
329. 
f  R.  S.,  s.  3168. 
Making  false  entry  or  signing  false  ^  i  Mar.,   1879,  s.  2 ;  20   Stat, 

certificate    I       329. 

y  [  R.   S.,  S.  3168. 

Failing  to  report  knowledge  of  vio-  -j  l  Mar.,  1879,  s.  2;  20  Stat., 

~^    lation  of  revenue   laws   [      329. 

Collectors  issuing  stamps  before  collec- 
tion of   tax   __1  Mar.,  1879,  s.  1 ;   20  Stat, 

327. 
District  attorney  demanding  or  accept- 
ing anything  for  compromise  of  vio- 
lation of  internal-revenue  laws R.  S.,  s.  3170. 

Chapter  Two. — Assessments  and  collections. 

Owner  of   premises   refusing  to  admit  f  R.  S.,  s.  3177. 

revenue    officers    or    interfering   with  j  1  Mar.,  1879,  s.  2 ;  20   Stat., 

same [      329. 

Making  false  return  to  collector R.  S.,  s.  3179. 


Appendix.  933 

Chapter  Three. — Special  taxes. 


Failing  to  display  special-tax  stamp  in 
place  of  business  

Carrying  on  business  as  rectifier,  liquor 
dealer,  etc.,  without  payment  of  spec- 
ial tax  


6  June,    1896,    s.   4;   29    Stat., 


R.  S.,  s.  3239. 

1   Oct.,   1890,  s.  26;  26  Stat, 
618. 
'R.   S.,  ss.   3242,   3281. 
8  Feb.,  1875,  s.  16;   18   Stat., 

310. 
13  June,  1898,  s.  36;  30  Stat., 
467. 
Manufacturing    oleomargarine    without  \  2  Aug.,   1886,  s.  4 ;  24  Stat., 

payment  of  special  tax }      209. 

Manufacturing     filled     cheese     without 

payment  of  special  tax )      254. 

Manufacturing  adulterated  or  renovated  (  9  May,   1902,  s.  4 ;   32   Stat., 

butter  without  payment  of  special  tax.  \      195. 
Officer  collecting  special  tax  for  recti- 
fying, etc.,  on  premises  less  than  600 
feet  from  distillery R.   S.,  s.  3244. 

Chapter  Four. — Distilled  spirits. 

Adding  substances  to  distilled  spirits  to 

create  fictitious  proof  R.  S.,  s.  3252. 

Evading  tax  on  distilled  spirits R    S.,  s.  3256. 

Distiller  defrauding  or  attempting  to  de- 
fraud United  States  of  tax — R-  S.,  s.  3257. 

Failing  to  register  stills — R-  S.,  s.  3258. 

Failing  to  give  notice  of  intention  to 
carry  on  business  of  rectifier  or  dis- 
tiller   — R.  S.,  s.  3259. 

Distiller  failing  to  give  bond — R.  S.,  s.  3260. 

28  May,  1880,  s.  1 ;  21   Stat, 
145. 

Collector  approving  bond  before  regul- 
ations are  complied  with — R-  S.,  s.  3261. 

Setting  up  still  without  permit — R-  S-,  s.  3265. 

Distilling  on  certain  prohibited  premises--^-  S.,  s.  3266. 
Breaking,  etc.,  locks  to  cistern  room,  etc.— — R-  S.,  s.  3268. 

Failing  to  keep  pipes  at  distilleries  paint- 
ed as  directed R.  S.,  s.  3269. 

Building  fence  exceeding  5  feet  in  height 
around  distillery;  refusing  to  furnish 

key  to  officer   R.  S..  s.  3275. 

f  R.  S.,  s.  3276. 

Obstructing  revenue  officer  from  enter-  -j  1   Mar.,   1879,  s.  5 ;  20  Stat, 
ing  distillery   [      335. 

Refusing  to  facilitate  examination  by  in-  (  R.  S.,  s.  3277. 

ternal-revenue  officer j  1  Mar.,  1879 ;  20  Stat.,  329. 

Signs  to  be  put  up  by  distillers,  rules 
concerning,  and  penalties  for  viola- 
tion   — R.  S.,  s.  3279. 

Carrying  grain,  etc.,  to  distillery  where 

there  is  no  sign R.  S.,  s.  3279. 

f  R.  S.,  s.  3282. 

Failing  to  give  bond  for  carrying  on  dis-  j  1   Mar.,  1879,  s.  5 ;  20  Stat., 
tillery [      335. 

Making  and  selling  mash,  wort,  etc.,  at 

unauthorized  distillery R.  S.,  s.  3283. 

Manufacture  of  vinegar,  regulations  con- 
cerning and  penalties  for  violation R.  S.,  s.  3283. 


560. 

28  Aug.,  1894,  s.  59 ;  28  Stat, 
566. 

R.  S.,  s.  3297. 

3  May,  1878;  20  Stat,  48. 


934  Appendix. 

Chapter  Four — Distilled  Spirits — Continued. 

Using  still  in  forbidden  hours R.  S.,  s.  3284. 

Using  material,  etc.,  and  removing  spirits 

in  absence  of  storekeeper — R.  S.,  s.  3284. 

I"  R.  S.,  s.  3286. 

Distiller  refusing  to  draw  off  water  and  \  1  Mar.,  1879,  s.  5 ;  20  Stat., 
clean  worm   tubs   [      335. 

Gauger  employing  distiller,  etc.,  to  use 

brands  or  perform  his  duties — R.  S.,  s.  3290. 

Gauger  making  false  inspection,  etc.  — --R.  S.,  s.  3292. 

Removing  or  concealing  spirits  contrary 

to  law  -R.  S.,  s.  3296. 

Transfer  of  spirits,  etc.,  from  one  ware-  1  3  Mar.,  1877,  s.  7 ;   19   Stat, 
house    to    another ;    rules    concerning,  r  394. 
and  penalties  for  violation J 

Removal  of  fruit  brandy  to  special  ware-  f  3  Mar.,  1877,  s.  11  ;  19  Stat, 
house  ;  rules  concerning  and  penalties  \  395.  18  Oct.,  1888  ;  25  Stat, 
for  violation   

Removal  of  distilled  spirits  from  dis- 
tillery warehouse  to  general  bonded 
warehouse ;  rules  concerning,  and  pen- 
alties   for  violation   

Officers  of  scientific  institutions  using 
alcohol  withdrawn  for  scientific  pur- 
poses for  other  purposes  

Removal  of  distilled  spirits  from  dis- 
tillery warehouse  to  sorghum  fac- 
tories ;  rules  concerning,  and  penalties 
for  violation    -3  Mar.,   1891;   26  Stat,   1050. 

Reusing  stamps  or  bottles  and  other  vio-  S  3  Mar.,  1897,  s.  6 ;  29  Stat., 
lations  of  law  concerning  same 1      627. 

Forging  or  counterfeiting  stamps --3   Mar.,  1897,  s.  7 ;  29   Stat., 

627. 

Storekeeper  removing,  etc.,  packages  or 
contents  before  being  stamped  or  with- 
out permission  of  collector R.  S.,  s.  3300. 

Making  false  entries  in  books  of  store- 
keeper or  distiller  --R-  S.,  s.  3305. 

Issuing  false  weights  — R-  S.,  s.  3306. 

Using  unregistered  materials   --R-  S.,  s.  3306. 

fR.  S.,  s.  3310. 

Carrying  on  business  of  distiller  after  \  28  May,  1880,  s.  7 ;  21  Stat., 
time  fixed  in  notice  of  suspension [      147. 

Breaking,  etc.,  any  lock,  seal,  etc.,  to  fur- 
nace, still,  etc. R.  S.,  s.  3311. 

Revenue  officer  using,  etc.,  stamps  con- 
trary to  law   R.  S.,  s.  3316. 

f  R.  S.,  s.  3317. 

Carrying  on  business  of  rectifier  with  in-  \  1  Mar.,  1879,  s.  5 ;  20  Stat., 
tent,  etc.,  to  defraud  the  United  States.  [      339. 

Rules  concerning  the  keeping  of  books  by  f  R.  S.,  s.  3318. 

rectifiers  and  distillers,   and  penalties  I  1   Mar.,  1879,  s.  5;   20  Stat., 
for  violation [      339. 

Purchasing  more  than  twenty  gallons  of 
distilled  spirits  from  person  other  than 
authorized  rectifier R.  S.,  s.  3319. 

Rectifier  or  dealer  refusing  to  make  re- 
turn of  distilled  spirits  received  and  f  R.  S.,  s.  3323. 
sent  out {16   July,   1892;   27   Stat,  200. 


Appendix.  i)35 

Chapter  Four. — Distilled  Spirits. — Continued. 

Failing  to  efface  and  destroy  stamps,  etc.-_R.  S.,  s.  3324. 
Transportation  company  carrying  empty 

casks  with  uneffaced  stamps . R.  S.,  s.  3324. 

Buying  or  selling  empty  casks  having  in- 
spection marks — R-  S.,  s.  3325. 

Changing  stamps;  shifting  spirits — R-   S.,  s.  3326. 

Affixing  imitation  stamps  on  packages  of  S  8   Feb.,  1875,  s.   17;   18   Stat., 

distilled  spirits 1      311. 

Removing  distilled  spirits  during  unlaw- 
ful hours -R-  S.,  s.  3327. 

Counterfeiting,     altering,     or      reusing 

stamps  on  imitation  wines — R.  o.,  s.  3328. 

Unlawfully    using   wine    spirits,   etc.    --1   Oct.,  1890,  s.  44;   26   Stat., 

622. 
Using  wine  spirits  which  have  not  been  tax-  >  !  Oct.,   1890,  s.  48;  26  Stat., 

paid __1      623. 

Fraudulently  claiming  drawback  on  dis- 
tilled spirits — R  S.,  s.  3330. 

Relanding  of  distilled  spirits --R-  S.,  s.  3330. 

Unlawful   to  use  or   sell  alcohol   with- 1  7  June,  1906,   s.  2;   34   Stat., 
drawn    for   denaturing,    for    purposes  r      217. 
other  than  arts  and  industries J 

Chapter  Five. — Fermented  Liquors. 

Owner,  etc.,  of  brewery  evading  tax,  etc.__R.  S.,  s.  3340. 

Books  of  brewer ;  regulations  concerning, 

and   penalties    for   violation   R.  S.,  s.  3340. 

Brewer  failing  to  affix  and  cancel  stamps 

on  packages  containing  fermented  liq-  \  R.  S..  s.  3342. 

uor }3   Mar.,   1875;    18    Stat.,   484. 

Affixing  fraudulent  stamp (  R.  S.,  s.  3342. 

{  3    Mar.,    1875 ;    18    Stat.,   484. 

Selling,  removing,  etc.,  fermented  liquors 
in  packages  without  stamp,  or  with 
false  stamp,  or  with  twice-used  stamp R.  S.,  s.  3343. 

Withdrawing  fermented  liquor  from 
package  without  destroying  or  defac- 
ing stamp   R.  S.,  s.  3344. 

Removing    lager    beer    from    depot    or 

warehouse  without  affixing  stamp R.  S.,  s.  3345. 

f  R.  S.,  s.  3346. 

Making,  using,  etc.,  false  stamp,  die,  or  \  l  Mar.,  1879,  s.  5 ;   20  Stat., 

permit    (      340. 

f  R.  S.,  s.  3346. 

Using  stamp  fraudulently \  l   Mar.,   1879,   s.   5  ;   20   Stat., 

I      340. 
Removing    name    of    manufacturer    on 

package __R.   S.,   s.   3349. 

Person     other     than     owner     removing 

stamp  on  package  of  fermented  liquor — R.  S.,  s.  3353. 
Withdrawing  fermented  liquor  from  un-  ]  R.  S.,  s.  3354. 

stamped  package  for  bottling,  or  un-  [  18  June,  1896 ;  26  Stat.,  161. 

lawfully  bottling  on  brewery  premises  J 

Chapter  Six. — Tobacco,  snuff,  and  opium. 

fR.  S.,  s    3355. 
Tobacco  manufacturer  failing  to  procure  {  1   Mar.   1879,  s.   14;  20   Stat, 
or   post   certificate    [      344. 


936 


Appendix. 


Chapter  Six. — Tobacco,  snuff,  and  opium — Continued. 

f  R.  S.,  s. 
Tobacco   or  snuff  manufacturer   failing  \  1  Mar., 

to    give    bond    [      344. 

Manufacturer  failing  to  put  up  sign R.  S.,  s. 

Manufacturer  failing  to  give  annual  in- 
ventory   — R.  S.,  s. 

f  R.  S.,  s. 


Books  of  dealers  in  leaf  tobacco;  rules 

concerning,  and  penalties  for  violation 

Selling  or  offering  for  sale  tobacco  not 


s. 


put  up  in  packages  and  stamped 


r 


R.  S.,  s.  3370. 


S.,  s.  3372. 


S., 

s. 


Oct., 
619 

Purchasing  tobacco  or  snuff  not  branded 
or  stamped  R.  S., 

Manufacturing  tobacco  on  shares,  or  by 
one  person  for  another;  rules  con- 
cerning, and  penalties  for  violation  __ 

Tobacco  and  snuff;  rules  governing  the 
removal  and  sale  of,  and  penalties  for 
violation    R. 

Removing  tobacco  from  manufactory  or 
offering  for  sale,  etc.,  without  stamp  ___R. 

Affixing    false    stamp,    etc.    __R. 

Failing  to  destroy  stamps  on  empty 
packages    R. 

Selling  packages  of  tobacco  or  snuff 
having  fraudulent  stamp  affixed R. 

Importers  of  cigars  and  tobacco  failing  f  R 
to  pay  same   tax  as  required  of  do-  {  1 
mestic  manufacturers  

Officer  of  customs  permitting  packages 
of  tobacco  or  snuff  to  pass  from  his 
hands  before  the  provisions  of  law 
have  been  complied  with   

Failure  of  dealers  in,  manufacturers  and  S  5  Aug., 
peddlers  of,  tobacco  to  register 

Retail  dealer  in  leaf  tobacco  refusing  to 
keep  books,  or  to  furnish  information ; 
or  making  false  entry,  or  false  state- 
ment, etc.   

'  R.  S.,  s 
1  Oct., 
618. 
f  R.  S.,  s 
\  1  Mar., 
346. 

Relanding  tobacco,  snuff,  etc.,  shipped  for  \  R.  S.,  s 
exportation  ]  8  Aug., 

Rules  concerning  tax  on  opium  manu-  1  1  Oct., 
factured   in   United    States,   and   who  \      621. 
may  engage  in  manufacture J 

Rules    governing    the    manufacture    of 

opium 1   Oct., 

620. 

Rules  concerning  stamps  to  be  affixed  to  \  1  Oct., 
opium  imported  into  United  States 1      621. 


3355. 

1879;  s. 

14 

20  Stat 

3356. 

3358. 

.  3360. 

1879,  s. 

14; 

20 

Stat 

.  3363. 

1890,  s. 

31; 

26 

Stat 

S.   3366. 


3374. 
3375. 


S.,  S.  3376. 


S.,  s 

S.,  s 

Mar., 

346. 

R.  S.,  s 

1  Mar., 

346. 


111. 

Aug., 
111. 


3376. 

3377. 

1879,  s.   14;   20 


3377. 
1879,  s.  14;  20 


Peddlers  of  tobacco  failing  to  obtain  and 
exhibit  certificate  

Peddling  tobacco  unlawfully 


Stat.. 

Stat. 

1909,  s.  35;  36  Stat. 
1909,  s.  35;  36  Stat. 


.  3383. 

1890,  s.  29;  26  Stat. 

.  3384. 
1879,  s.  15;  20  Stat. 

.  3385. 

1882;  22  Stat.,  372. 

1890,  s.  36;  26  Stat. 


1890,  s.  37;  26  Stat. 
1890,  s.  38;  26  Stat. 


Appendix.  937 

Chapter  Seven. — Cigars. 

f  R.  S.,  s.  3387. 

Manufacturing    cigars    without    giving  \  1   Oct.,  1890,  s.  35 ;   26   Stat., 
bond   [      620. 

Cigar   manufacturer    failing   to   display 

sign R.  S.,  s.  3388. 

Annual  inventory;  rules  governing,  and 

penalties  for  violation R.  S.,  s.  3390. 

fR.  S.,  s.  3392. 

Cigars ;    rules   relating   to   packing,   and  \  1   Oct.,   1890,  s.  32 ;   26   Stat., 

penalties   for  violation   I      619. 

|  R.  S.,  s.  3393. 

Manufacturer    of    cigars    neglecting    to  -j  1  Mar.,  1879,  s.  16 ;  20  Stat., 
affix  label   to  box  (      348. 

Packages  of  tobacco,  snuff,  cigars,  and  f  R.  S.,  s.  3394. 
cigarettes  not  to  contain  lottery,  etc.,  \  5  Aug.,  1909,  s.  33 ;  36  Stat., 

tickets [      110. 

|  R.  S.,  s.  3397. 

Removing     cigars     from     manufactory  \  1  Mar.,  1879,  s.  16 ;  20  Stat., 

without  properly  packing {      348. 

|  R.  S.,  s.  3397. 

Using    counterfeit    stamp,    or    making  -j  1  Mar.,  1879,  s.  16 ;  20  Stat., 
fraudulent  use  of  stamp  I      348. 

Cigars  manufactured  on  shares,  etc. ; 
rules  governing,  and  penalties  for 
violation    R.  S.,  s.  3399. 

Forfeiture  for  selling  cigars  contrary  to 
law,  or  for  false  entry,  or  for  affixing 
forged  stamp R.  S.,  s.  3400. 

Officer  permitting  imported  cigars  to 
pass  out  of  his  hands  without  com- 
pliance with  law  by  the  owner — R-  S.,  s.  3402. 

Selling  imported  cigars  not  packed  ac- 
cording to   law   R.  S.,  s.  3403. 

Purchasing,  etc.,  cigars  not  branded  or 

stamped  according  to  law --R-  S.,  s.  3404. 

Neglecting  to  destroy  stamps  on  empty 
boxes  or  disposing  of  boxes  with  un- 
destroyed  stamps   R.  S.,  s.  3406. 

Chapter  Eight. — Oleomargarine,  adulterated 
butter,  and  filled  cheese. 
Rules  governing  the  packing  and  selling  f  2  Aug.,  1886,  s.  6;  24  Stat, 

of    oleomargarine,    and    penalties    for  i      210. 

violation 

Manufacturer  neglecting  to  affix  label  on  f  2  Aug.,   1886,   s.   7 ;   24   Stat., 

package  containing  oleomargarine }      210. 

Officers  of  customs  permitting  packages 

of  oleomargarine  to  pass  out  of  his 

hands  before  owner's  compliance  with 

stamp  regulations,  etc.  

Removing,   defacing,   etc.,    stamps,   etc.,  \  2  Aug.,  1886,  s.  15 ;  24  Stat 

on  packages  of  oleomargarine }      212. 

Manufacturer  of  oleomargarine  attempt- 
ing to  defraud  United  States  of  tax )      212. 

Purchasing,     etc.,     oleomargarine     not  \  2  Aug.,  1886,  s.  11 ;  24  Stat., 

branded,  etc.,  according  to  law }      211. 

Purchasing,    etc.,    oleomargarine    from 

manufacturer  who  has  not  paid  special  }2  Aug.,  1886,  s.  12;  24  Stat., 

tax    J      211. 


2  Aug.,  1886,  s.  10;  24   Stat, 
211. 


'2  Aug.,  1886,  s.   17;  24  Stat, 


938 


Appendix. 


Chapter   Eight — Oleomargarine,    adulterated 
butter,  and  filled  cheese — Continued. 

Failing  to  destroy  stamps  on  empty  oleo-  S 
margarine  packages } 

Selling  empty  packages  on  which  stamps  S 
are    not    destroyed    } 

Manufacturer  of   oleomargarine  failing  \ 
to  comply  with  laws   1 

Selling  adulterated  butter  in  other  than  \ 
original    packages    = 

Manufacturer  neglecting  to  affix  specified 
label  on  adulterated  butter 

Failing  to  label  "Renovated"  or  "Pro- 
cess" butter  as  such  


Wholesale  dealers  in  oleomargarine  or 
in  adulterated  or  renovated  butter 
failing  to  keep  books   

Filled  cheese;  rules  for  packing  and  re- 
tailing and  penalties  for  violation 

Dealers  in  filled  cheese  neglecting  to  dis- 
play  sign    

Manufacturer  of  filled  cheese  neglecting 
to  affix  label  

Purchasing  filled  cheese  not  branded  or 
stamped  

Purchasing  filled  cheese  from  manufac- 
turer who  has  not  paid  special  tax 

Failing  to  destroy  stamps  on  empty  pack- 
ages of  filled  cheese 

Notices,  inventories,  books,  to  be  kept  by 
manufacturers  of  oleomargarine,  adul- 
terated butter,  and  filled  cheese ;  rules 
concerning.and  penalties  for  violation  _ 


2  Aug.,  1886,  s.     13  ;  24  Stat., 

211. 
2  Aug.,   1886,  s.  13;  24  Stat., 

211. 
2  Aug.,   1886,  s.  12;  24  Stat, 

212. 
9  May,   1902,  s.  4;    32   Stat, 

195. 
9    May,   1902,   s.   4;    32    Stat, 

195. 
9   May,   1902,   s.   5;   32   Stat, 

197. 

1  Oct,   1890,   s.  41;   26   Stat, 
621. 

9   May,   1902,   s.   6;   32   Stat, 

197. 
6   June,   1896,   s.   6;   29   Stat., 

254. 
6   June,   1896,   s.   7;   29    Stat, 
\        255. 
6   June,    1896,   s.   8;   29   Stat, 

255. 
6  June,   1896,  s.   12 ;  29   Stat, 

256. 
.  6  June,   1896,   s.  13 ;  29  Stat., 

256. 
6  June,  1896,  s.  14;  29   Stat, 

256. 

2  Aug.,   1886,   s.   5;   24   Stat, 
210. 

6  June,   1896,   s.   5;   29   Stat., 

254. 
9  May,  1902,  s.  14;  32   Stat, 

195. 


Chapter  Nine. — Mixed  flour. 

Neglecting  to  brand,  etc.,  packages   of  f 

mixed    flour    } 

Mixed   flour;    rules   governing  the  put-] 

ting  up  and  retailing  of,  and  penalties 

for   violation    

Manufacturer  of  mixed  flour  neglecting  \ 

to  affix  label  and  notice } 

Mixed  flour ;  rules  for  packing  in  bar-  j 

rels,  etc.,  and  penalties  for  violation.  ) 
Purchasing,   etc.,   mixed   flour   that  has  ( 

not  been  branded,  etc.   ) 

Purchasing  mixed    flour    from    maker,  ( 

etc.,  who  has  not  paid  special  tax } 

Exporter    of    mixed    flour    subject    to  j 

same  provisions  as  maker,  etc. } 

Penalty  for  second  offense  of  violation  \ 

of  laws  concerning  mixed  flour } 

Chapter   Ten. — Banks  and  bankers. 

Uanker  neglecting  to  make  monthly  re- 
turn     


13  June, 

467. 
13  June, 

468. 

13  June, 

468. 
13  June, 

468. 
13  June, 

469. 
13  June, 

469. 
13  June, 

469. 
13  June, 

470. 


1898,  s. 
1898,  s. 

1898,  s. 
1898,  s. 
1898,  s. 
1898,  s. 
1898,  s. 
1898,  s. 


37;  30  Stat., 
38;  30  Stat, 

39 ;  30  Stat.. 
40  ;  30  Stat., 
42;  30  Stat. 
43;  30  Stat, 
44;  30  Stat, 
48;  30  Stat, 


R.  S.,  s.  3415. 


Appendix.  939 

Chapter  Eleven. — Corporations. 

Revenue  officer,  etc.,  divulging  informa-  ]  5  Aug.,  1909,  s.  38  ;  36  Stat, 
tion  obtained  in  discharge  of  duty  in  [•      11G. 
collection  of   corporation   tax   J 

Chapter  Twelve. — Playing  cards. 

Tax  stamps  on  playing  cards ;  rules  gov-  S  28  Aug.  1894,  s.  39 ;  28  Stat, 

erning  and  penalties  for  violation }      560. 

Manufacturer   of   playing   cards   failing  (28  Aug.,  1894,  s.  40;  28  Stat., 

to   register    }      560. 

Selling,  etc.,  playing  cards  without  affix-  \  28  Aug.,  1894,  s.  43 ;  28  Stat., 

ing  stamp   )      562. 

Removing  stamp  from  playing  cards,  or  )  28  Aug.,  1894,  s.  44 ;  28  Stat., 

fraudulently   using   stamp   }      562. 

Selling,   etc.,    or   concealing,   etc.,   play-  f  28  Aug.,  1894,  s.  45  ;  28  Stat., 

ing   cards    without    stamps    )      562. 

Manufacturing  of  playing  cards  failing  (  28  Aug.,  1894,  s.  46 ;  28  Stat., 

to  pay  tax  {      562. 

Chapter   Thirteen. — Provisions    common    to 
several  objects  of  taxation. 
Distillers,  etc.,  and  manufacturers  of  to- 
bacco,  etc.,    failing  to  do   things    re- 
quired, and  doing  things  forbidden  by 
law __R.  S.,  s.  3456. 

f  24  July,  1897,  s.  10;  30  Stat., 
Inclosing  lottery  tickets,  etc.,   in   pack-         206. 

ages  of  tobacco,  etc. \  1   Julv,   1902,   s.  2 ;    32   Stat., 

Fraudulently   claiming   drawback   __R    §.    s.   3443. 

8  Feb.,  1875,  s.  25;  18   Stat., 

312 
Removing  liquor  or  wines   under  other 

than  trade  names r    g     s    3449 

Removing,  concealing,  etc.,  articles  with 

intent  to  evade  United  States  tax  __ __R.  S.,  s.  3450. 

Fraudulently  executing  documents  re- 
quired  by  internal-revenue   law __R.  S.,  s.  3451. 

Having  property  in  possession  with  in- 
tent to  sell  in  fraud  of  law,  or  to 
evade   taxes   _ R.  S.,  s.  3452. 

Selling,  purchasing,  etc.,  empty  stamped 

packages   _   R.   S.,   s.   3455. 

Manufacturing  boxes,  barrels,  etc.,  un- 
lawfully stamped   R.   S.,   s.   3455. 

Forging  or  counterfeiting  stamps,  dies,  f  R.  S.,  s.  3429. 

or  plates ;   using   forged  or  counter-  j  1  Mar.,  1879,  s.  17 ;  20  Stat., 

f eited  stamps,  dies,  or  plates ;  cutting,  I      349. 

tearing,  etc.,  impression  of  stamp,  die,  -{  28  Aug.,  1894,  s.  42 ;  28  Stat., 

or  plate,  or  fraudulently  using  same;  I      561. 

having  stamps,  dies,  or  plates  in  pos-  |  13  June,  1898,  s.  8 ;  30  Stat, 

session  unlawfully  [      452. 

TITLE    XXVIII. 

NATIONAL  BANKS. 

Chapter  One. — Organisation  and  pozvers. 
Using  word  "National"  as  part  of  cor- 
porate name  without  authority R.  S.,  s.  5243. 


940  Appendix. 

Chapter   Tzvo. — Circulating  notes. 

Issuing  circulating  notes  to  unauthorized 

association    R.  S.,  s.  5187. 

Chapter  Three. — Regulation  of  the  banking 
business. 
Holding  United  States  notes  as  collateral-.R.  S.,  s.  5207. 

Falsely  certifying  checks 12  July,  1882,  s.  13;  22  Stat, 

1G6. 

Embezzlement,  etc. R.  S.,  s.  5209. 

Failing  to  make  report  of  dividends R.  S.,  s.  5213. 

Failing  to  make  half-yearly  return  of 

circulation R.  S.,  s.  5215. 

TITLE    XXIX. 

THE  PUBLIC   MONEYS. 

Chapter  One. — Custody. 

Assistant  treasurers  accepting  commis- 
sions or  other  perquisites R.  S.,  s.  3597. 

Clerk  acting  as  assistant  treasurer  sub- 
ject to  same  penalties R.  S.,  s.  3613. 

Withholding    moneys    due    the    United 

States R.  S.,  s.  3619. 

TITLE    XXX. 

THE  PUBLIC  DEBT. 

Counterfeiting,  etc.,  certificates  of  indebted-  \  13  June,  1898,  s.  32 ;  30  Stat., 
ness  I      466. 

TITLE    XXXI. 

DEBTS  AND  CLAIMS. 

Chapter  One. — Collection  and  payment. 

Making  false  claim  against  Government — R.  S.,  s.  3490. 

TITLE    XXXII. 

PUBLIC  CONTRACTS. 

Officer  making  contract  failing  to  make  re- 
turn thereof  R.  S.,  s.  3746. 

Employees  of  United  States  having  interest  \  22  June,  1874,  s.  10;  18  Stat, 
in  Indian  contracts,  etc.  1      177. 

TITLE    XXXIV. 

THE  PUBLIC  HEALTH  AND  MARINE-HOSPITAL  SERVICE. 

Chapter  Tzvo. — Sanitation  and  quarantine. 

Vessel   from  foreign  port  entering  port  S  15  Feb.,  1893,  s.  1 ;  27  Stat., 

in  violation  of  quarantine  law )      449. 

Vessel  from  foreign  port  to  secure  bill  \  15  Feb.,  1893,  s.  2 ;  27  Stat., 
of  health  before  sailing ^      450. 


Appendix.  941 


Chapter   Tivo. — Sanitation  and  quarantine — Continued. 


19  June,  1906,  s.  4 ;  34   Stat, 
300. 


19  June,  1906,  s.   i ;  34  Stat, 
300. 


Vessel  or  person  entering  within  limits  of 
quarantine  grounds  or  stations  or  de- 
parting therefrom  without  permission  _ 

Owner  or  master  of  vessel  violating  rule 
regulating  inspection  of  vessels  or 
making  false  statement  as  to  sanitary 
conditions  of  vessel 

Person  trespassing  on  quarantine  reser- 
vation or  vessel  entering  in  violation 
of  quarantine 1   Aug.,   1888;    25    Stat,   355. 

Violating  regulation  for  suppressing  con-  f  27  Mar..  1890,  s.  1 ;  26  Stat, 
tagious  diseases \      31. 

Quarantine  officer  or  person  employed  in  1  27  Mar.,  1890,  s.  2 ;  26  Stat, 
service   violating   regulation   for   pre-  \      31. 
venting  spread  of  contagious  disease  _  I 

Common  carrier  or  officer  or  agent  there-  ]  27  Mar.,  1890,  s.  3  ;  26  Stat., 
of  violating  quarantine  law  or  regu-  \      32. 
lation    J 

TITLE    XXXVII. 

FOREIGN   RELATIONS. 

Violating  safe-conduct  or  assaulting  public 

minister   R.  S.,  s.  4062. 

Suing    out    writ    or    process,    etc.,    against 

public    minister    R.  S.,  s.  4064. 

Failing  to  appear  or  refusing  to  testify  in 

suit  pending  in  foreign  country R.  S.,  s.  4073. 

f  R.  S.,  s.  4078. 

Issuing  false  passport,  etc. \  14  June,  1902,  s.  3;  32  Stat., 

[      386. 
Murder,    and    insurrection    against    certain 

countries    R.  S.,  s.  4102. 

TITLE    XXXVIII. 

INDIANS. 

Chapter  One. — Officers  and  agencies. 

Indian  agent  making  false  entry  in  books, 

or  failing  to  keep  books'  etc. 3   Mar.,   1909;   35   Stat.,   784. 

Employees  in  Indian  affairs  trading  with 

Indians R.  S.,  s.  2078. 

Chapter   Two. — Performance   of   treaty   ob- 
ligations. 
Receiving    money    from    Indians    under 
prohibited  contracts R.  S.,  s.  2105. 

Chapter  Three. — Government  and  protection. 

Sending  seditious  message  to  Indians R.  S.,  s.  2111. 

Carrying  seditious  message  to  Indians R.  S.,  s.  2112. 

Corresponding  with   foreign  nations  to 

incite  Indians  to  war R.  S.,  s.  2113. 

Attempting  to  negotiate  treat.,  with  In- 
dians without  authority R.  S.,  s.  5394. 

Driving  stock  to  feed  on  Indian  lands R.  S.,  s.  2117. 

Settling  on  or  surveying  Indian  lands R.  S.,  s.  2118. 


942  Appendix. 

Chapter  Four. — Government  of  Indian  coun- 
tries. 
Purchasing    cattle    of    Indian?    without 

consent  of  agent 4  July.  1884;  23  Stat.,  94. 

Residing   in    Indian   Country   as   trader  \  R.  S.,  s.  2133. 

without  a  license {31  July,   1882;   22   Stat,  179. 

Foreigner    going    into    Indian    country 

without  passport R.  S.,  s.  2134. 

Purchasing    certain    prohibited    articles 

from  Indians  R-  S.,  s.  2135. 

Hunting  on  Indian  lands R.  S.,  s.  2137. 

Removing     cattle,     etc.,     from     Indian 

country — R-  S.,  s.  2138. 

Selling  intoxicating  liquors  to  Indians  __ __R.  S.:  s.  2139. 

30   Jan.,   1897;   29   Stat,   506 
Operating  a  distillery  in  Indian  country  ___R.   S.,  s.  2141. 
Assaulting  an  Indian  or  other  person  __ __R.  S.,  s.  2142. 

Arson  in  Indian  country -— __R.  S.,  s.  2143. 

Forgery  and  mail  depredations  in  Indian 

country    R.  S.,  s.  2144. 

Returning   to   Indian  country  after   re- 
moval    R-  S.,  s.  2148. 

TITLE     XXXIX. 

PATENTS. 
Falsely  marking,  etc.,  articles  as  patented R.  S.,  s.  4901. 

TITLE    XLI. 

COPYRIGHTS. 

Failure  of  proprietor  of  copyright  to  deposit]  4  Mar.,  1909,  s.  13;  35  Stat. 

with    Register   of    Copyrights    copies   of  \      1078. 

copyrighted   words   J 

Making  false  affidavit,  etc.,   for  purpose  of  J  4  Mar.,  1909,  s.  17 ;  35  Stat., 

obtaining  registration  of  copyright {      1079. 

Willfully  infringing  copyright  for  profit  _4   Mar.,    1909,    s.    28;    35    Stat, 

1082. 
Fraudulently  giving  notice  of  copyright  upon  ]  4  Mar.,  1909,  s.  29  ;  35  Stat. 

uncopyrighted  article,  or  knowingly  issuing  \      1082. 

or  selling  article  bearing  such  false  notice.  J 

TITLE     X  L  I  I  . 

PENSIONS. 

Chapter  One. — Wars  prior  to  eighteen  hun- 
dred and  sixtv-one. 
Making    false    oath    concerning    Indian  {  27  July,  1892.  s.  3 ;  27  Stat.. 

war   pensions    I      282. 

Chapter  Fire. — Applications  and  attorneys. 

Making     false     affidavits,      certificates,  J  R-    S.,    s.   4746. 

vouchers,  etc.  -_.    I  7  July,  1898  >  30  Stat,  718. 

f  27  June,  1890,  s.  4;  26   Stat., 

Attorney  or  agent  charging  unlawful  fee  |      183. 

or    withholding    pension    from    pen-  j  19  Apr.,  1908,  s.  3 ;  35  Stat., 
sioner    I      64. 


Appendix.  943 

Chapter  Five. — Applications  and  attorneys — ■Continued. 
Agent  or  attorney  charging  unlawful  fee 

for  securing  increase  of  pension 3   Mar.,   1891 ;  2G   Stat.,  1082. 


Charging   excessive   fees   in   pension   or  - 
bounty  land  cases  

Receiving    compensation    for    securing 
legislation   


R.  S.,  s.  5485. 

4   July,    1884,    s.    4;    23    Stat., 

101. 
10   Mar.,    1902;   32    Stat.,   62. 
24   Apr.,    1906;    34   Stat.,   133. 
28  May,  1908,  s.  1 ;   35  Stat.. 
419. 
Claiming  fee,  etc.,   for  securing  pension 

for  army  nurse 5    Aug.,    1892;    27    Stat,   349. 

Chapter  Eight. — General  provisions. 

Guardian,    etc.,    embezzling    pension    of 

ward R.   S.,   ss.   4783,  5486. 

10   Feb.,   1891;   26   Stat,   746. 
Claim  agents  withholding  discharge  pa- 
pers without  consent 21   May,   1872;    17   Stat,   137. 

TITLE    XLIV. 

TERRITORIES  AND   INSULAR  POSSESSIONS. 

Chapter  One. — Provisions  common  to  all  the 
Territories. 
Owners  of  coal  mines  failing  to  comply  1  3   Mar.,   1891,   s.   7 ;   26   Stat, 
with  regulations  concerning  machinery,  \      1105. 

ventilation,  etc.   J 

Employing  children  in  mines 3  Mar.,  1891,  s.  12;  26  Stat, 

1105. 
Chapter  Tzvo. — New  Mexico,    Arizona    and 
Oklahoma. 
Railroads  failing  to  have  stations  at  town  \  8  Aug.,  1894,  ss.  1,  2 ;  28  Stat, 
sites    I      263. 

Chapter  Three. — Alaska. 

Clerk  of   court   failing  to   account    for  J  6  June,  1900,  s.  16 ;  31  Stat, 

fees   received   (      328. 

Person  appointed  road  overseer  refusing 

to  serve 27   Apr.,   1904;   33   Stat,  392. 

Road  overseer  failing  to  deliver  records, 

etc.,  to  successor 27  Apr.,  1904;   33   Stat,  392. 

Persons  failing  to  work  on  roads,  etc. 27  Apr.,   1904;   33   Stat,   392 

Persons  refusing  to  do  reasonable  day's 

work,  etc.  27  Apr.,   1904;   33   Stat,  393. 

Road  overseer  failing  to  perform  duties 27   Apr.,   1904  ;   33   Stat,   393. 

Chapter  Six. — The  Philippine  Islands. 

Employing  slave  labor _• 1  July,  1902.  s.  74;  32  Stat, 

709. 

TITLE    XLV. 

RIVERS  AND  HARBORS. 

Chapter  One. — Improvements. 

Failing  to  furnish  shipping  statistics  to 
persons  in  charge  of  harbor  works 8    Feb.,    1891;    26    Stat.,   766 


944 


Appendix. 


Chapter  Two. — Obstructions  to  navigation. 
Regulations  concerning  the  construction 
of  bridges,  wharves,  etc.,  and  penalties 
for  violation 

Violating  rules  of  Secretary  of  War 
concerning  dumping  of  refuse  in  navi- 
gable  waters    


Depositing  refuse  in  navigable  waters ; 
obstructing  channels,  etc. 

Rules  concerning  drawbridges,  and  pen- 
alties for  violation 


Rules  concerning  the  use  of  canals,  and 
penalties   for  violation   

Rules    concerning    floating    timber    and 
logs,  and  penalties  for  violation 

Chapter  Three. — Provisions  applicable  to 
particular  rivers,  harbors,  and 
canals. 

Violating    rules    for    protecting    South 
Pass,  Mississippi  River 

Violating  rules  for  protecting  reservoirs 
at  headwaters  of  Mississippi  River  __- 


3  Mar.,  1899,  s.  12;  30  Stat, 
1151. 

20  Feb.,  1900;  31  Stat.,  32. 
(  19   Sept.,   1890,  s.  6 ;  26  Stat, 
j       453. 

18  Aug.,  1894,  ss.  6,  7,  8;  28 

Stat,  363. 
3  Mar.,  1899,  s.  13;  30  Stat, 
1152. 
S  3"  Mar.,  1899,  s.  16 ;  30  Stat, 
(   1153. 
18  Aug.,  1S94,  s.  5;  28  Stat, 

362. 
13  June,  1902,  s.  6 ;  32  Stat, 

374. 
18  Aug.,  1894,  s.  4;  28  Stat. 

362. 
13  June,  1902,  s.  11;  32  Stat, 
374. 
[9   May,   1900,   s.   2 ;   31    Stat, 
(       172. 


Violating  regulations  for  protecting  cer- 
tain anchorage  grounds  


Violating  regulations  for  anchorage  of 
vessels  in  St.  Marys  River 

Refusing  to  obey  instructions  of  harbor- 
master at  Washington,  D.  C. 

Depositing  refuse,  etc.,  in  Potomac  River- 

Willful  violation  of  regulations  for  navi- 
gation of  South  and  Southwest  passes 
of    Mississippi    River    

Chapter  Four. — New  York  Harbor 

Depositing  refuse  in  New  York  Harbor. 

Master,  etc.,  of  vessel,  towing  scow,  etc., 
loaded   with    refuse   

Moving  scow,  etc.,  loaded  with  refuse 
without    permit    


'  11  Aug.,  1888,  s.  5 ;  25  Stat, 
424. 
19  Sept,  1890,  s.  3;  26  Stat, 
452. 

11   Aug.,   1888;  25   Stat,  419. 
'16  May,   1888,   s.  2;  25   Stat, 

151. 
6   Feb.,   1893,    s.    2;   27   Stat, 
•I       431. 
6  June,   1900,  s.  2;   31   Stat, 

682. 
'  6  Mar.,  1896,  s.  3 ;  29  Stat,  54. 
-j  26  Apr.,   1906,  s.    1 ;   34  Stat, 
[      136. 

S  2   Mar.,   1895,   s.   2;   28   Stat, 
(      741. 
-19  May,  1896,  s.  3 ;  29  Stat. 

127. 
1  3  Mar.,   1909,  s.  5 ;   35  Stat, 
]■      818. 


29  June,   ±888,  s.   1 ;  25  Stat, 

209. 
29  June,  1888,  s.  2 ;  25  Stat., 

209. 
'29  June,  1888,  s.  3 ;  25  Stat. 

209. 
18  Aug.,  1894,  s.  3;  28  Stat, 

.'.60. 


Appendix. 


945 


Chapter  Four — New  York  Harbor — Continued. 

'29  June,  1888,  s.  3;  25  Stat, 
209. 
18  Aug.,  1894,  s.  3;  28  Stat, 
361. 

28  May,   1908,  s.  3 ;  35  Stat. 
426. 

29  June,  1888,  s.  3 ;  25  Stat. 
209. 

18  Aug.,  1894,  s.  3;  28  Stat, 

362. 
28  June,  1888,  s.  3;  25  Stat, 

209. 
18  Aug.,   1894,  s.  3;  28  Stat, 
362. 
Violating    rules    concerning    disposition  f  28  June,  1883,  s.  4;  25  Stat, 

of  dredged  matter  \      209. 

Fishing     for    shellfish,     or     interfering  )  18  Aug.,  1894,  s.  2 ;  28  Stat., 
with  navigation  in  New  York  Harbor   (      360. 

Chapter  Six. — California  Debris  Commission. 

Injuring,  etc.,  any  dam  or  work  erected]  1  Mar.,  1893,  s.  22;  27  Stat., 

under  the  provisions  of  this  title  and  >      510. 

chapter    J 

Mining  by  hydraulic  process  so  as  to  in-  j  1  Mar.,  1893,  s.  22;  27  Stat., 

jure  navigable  waters \      510. 


Dumping  refuse,  etc.,  in  other  place  than 
specified   in   permit    


Bribing  inspector 

Failing  to  indorse  and  return  permit 


TITLE    XLVI. 

THE  POSTAL  SERVICE. 

Chapter    Tzvo. — City,   rural,   and   immediate 
delivery. 
Special-delivery  messenger  deemed  post-  1  4  Aug.,  1886,  s.  4  ; 
al  employee  and  to  be  subject  to  same  >     221. 

penalties    J  3  Mar.,   1903,   s.   4; 

1176. 


24   Stat., 
32   Stat., 


Chapter  Eight. — Carrying  the  mail. 

Surety  on  bond  of  bidder  for  carrying  1  R.  S.,  s.  3964. 
the  mail  willfully  swearing  falsely  __  \  11  Aug.,  1876,  s.  246;  19  Stat., 

J       129. 
Combining  to  prevent  bids  for  carrying 

the  mail R.  S.,  s.  3950. 


TITLE     X  L  V  I  I  . 

COMMERCE  AND  NAVIGATION. 

Chapter  One. — Registry  and  recording. 

Master  making  false  oath  to  secure  regis- 
tration of  vessel  R.  S.,  s.  4144. 

Failing  to  deliver  up  certificate  when  re-  f  R.  S.,  s.  4146. 

quired    -j  16  Jan.,   1895,  s.  2; 

I       624. 
Failing  to  have  tonnage  number  marked  f  R.  S.,  s.  4153. 

on  vessel,  etc. \  19  June,  1886,  s.  5: 

I      81. 
60 


28  Stat 


24  Stat, 


946  Appendix. 

Chapter  One — Registry  and  recording — Continued. 
Failing  to   provide    space    for   crew    in 

vessel   _ 3   May,  1897,  s.  2;   29    Stat., 

Failing  to  surrender  certificate  granted         743. 

purchaser _ __R.  S.,  s.  4160. 

Failing  to  surrender  certificate  granted 

agent _ __R.  S.,  s.  4162. 

Failing  to  surrender  certificate  obtained 

upon  loss  of   original   __R.  S.,  s.  4168. 

Failing  to  register  anew  when  required__R.  S.,  s.  4169. 
Failing  to  report  change  of  master __R.  S.,  s.  4171. 

iR.  S.'  s.  4177. 
19  June,  1886,  s.  6;  24  Stat.. 
81. 
R.  S.,  s.  4178. 
20  Jan.,  1897,  s.  1 ;  29   Stat., 
491. 
Making  lalse  register,  certihcate  of  reg- 
istry, or  giving   false  information  as 

to  description  of  vessel,  etc. __R.  S.,  s.  4187. 

Officers  neglecting  duties R.  S.,  s.  4188. 

Making  or  using  forged  sea  letters,  pass- 
ports, certificates  of  registry,  etc. R.  S.,  s.  4191. 

Chapter  Two. — Clearance  and  entry. 

Vessel  departing  from  foreign  port 
without  delivering  manifest  and  ob- 
taining  clearance   R.  S.,  s.  4197. 

Master  of  foreign  vessel  failing  to  de- 
posit papers  with  consul,  etc.,  on  ar- 
rival     ____ __R.  S.,  s.  4209. 

Foreign  consul  delivering  papers  to  mas- 
ter before  clearance  R.  S.,  s.  4211. 

f  R.  S.,  s.  4213. 

Master   failing  to  furnish  statement  to  \  26  June,  1884,  s.  13 ;  23  Stat., 
collector  of  services  rendered  by  consul  [      56. 

]  R.  S.,  s.  4146. 

Pleasure  yachts,  etc.,  engaging  in  trade,  \  16  Jan.,  1893,  ss.  4-6 ;  28  Stats , 
and  otherwise  violating  laws J      625. 

Chapter  Four. — Emigrant  vessels. 

Rules  concerning  compartments  for  emi-  £  2  Aug.,   1882,  s.  1 ;   22   Stat, 

grants,  and  penalties  for  violation S  186. 

Rules  and  regulations  concerning  berths 

for  emigrants,  and  penalties  for  viola-  S  2  Aug.,  1882,  s.  2 ;  22   Stat., 

tion    I  186. 

Rules    concerning    ventilation,    hygiene,  ]  2  Aug.,  1882,  s.  3;   22  Stat. 

etc.,  of  passenger  decks,  and  penalties  [  187. 

for  violation J 

Rules  governing   food,  meals,  etc.,  and  S  2  Aug.,  1882,  s.  4 ;  22   Stat.. 

penalties    for  violation  (  188. 

Rules  concerning  hospital  compartment,  |  2  Aug.,   1882,  s.  5 ;  22   Stat, 

surgeon,  medicines,  etc.,  and  penalties  [  188. 

for  violation j 

Rules  concerning  discipline  and  cleanli- (  2  Aug.,   1882,  s.  6;   22  Stat., 

liness,  and  penalties  for  violation (  188. 

Officers,  seamen,  etc.,  visiting  passengers  |  2  Aug.,  1882,  s.  7;  22   Stat. 

apartments    /  189. 

Rules  for  carrying  explosives,  horses  and  )  2  Aug.,   1882,  s.  8 ;  22  Stat, 

cattle,  etc.,  and  penalties  for  violation  _  \  189. 


Appendix.  947 


Chapter  Four. — Emigrant  vessels — Continued. 

f2  Aug.,  1882,  s.  19;  22  Stat, 
Master  permitting  the  board  of  vessel 
by  other  than  specified  persons  


189. 
31    Mar.,    1900,    ss.    1,    2;    31 

Stat.,  58. 
2  Aug.,   1882,   s.   9;   22   Stat, 
Rules   of    Secretary  of   Commerce   and         189. 

Labor  concerning  boarding  of  vessels,  \  31    Mar.,    1900,    ss.    1,   2;    31 

and  penalties  for  violation (      Stat.,  58. 

Master  refusing  to   pay  ten  dollars   in  J  2  Aug.,  1882,  s.  10;  22  Stat., 

each  case  of  death  at  sea \      190. 

Vessel   leaving  port  before  being  duly  |  2  Aug.,  1882,  s.  12 ;  22  Stat., 
cleared  by  collector |      190. 


Chapter  Five. — Liability  of  vessels. 

Shipping  inflammable  material  in  vessel R.  S.,  s.  4288. 

Inserting  in  bill  of   lading,  etc.,   clause  {  13    Feb.,    1893,    ss.    1,    7 ;    27 
relieving   from   liability   {      Stat,  445. 

Inserting  covenants  in  bill  of  lading,  etc.,  }  13  Feb.,  1893,  s.  2 ;  27  Stat, 
avoiding  exercise  of  due  diligence }      445. 

Rules    concerning    bills    of    lading,    and  j  13    Feb.,    1893,    ss.    4,    7 ;    27 
penalties  for  violation \      Stats.,  445. 

Refusing  to  issue  bill  of  lading  on  de- 
mand  13  Feb.,  1893,  s.  5;  27  Stat, 

446. 

Chapter  Six. — Log  books. 

Neglecting  to  keep  up  log  book  in  man- 
ner required,  or  making  entry  more 
than  24  hours  after  arrivals,  etc. R.  S.,  s.  4292. 

Chapter  Nine. — Vessels  engaged  in  foreign 
commerce. 

Vessel  departing  without  passport R.  S.,  s.  4307. 

Master  failing  to  deposit  ship's  papers  with 

consul R.  S.,  s.  4310. 

Chapter   Ten. — Vessel  engaged   in   domestic 
commerce. 

Rules  for  exchange  of  enrollment  and 
register  when  vessel  in  another  dis- 
trict, and  penalty  for  violation R.  S.,  s.  4323. 

f  R.  S.,  s.  4325. 

Master  failing  to  deliver  license  at  ex-  {  24  Apr.,  1906,  s.  2 ;  34  Stat, 

piration    [      136. 

f  R.  S.,  s.  4334. 

Owner  failing  to  have  name  of  vessel  \  26  June,  1884,  s.  21 ;  23  Stat., 
painted  on  stern [      58. 

New  master  failing  to  report  change  of 

master    __ _-__R.  S.,  s.  4335. 

Master  not  exhibiting  enrollment  or  li- 
cense when  required  

Foreign  vessels  transporting  passengers  ._R.   S.,   s.   4336. 
between  United  States  ports S  1~  Feb.,  1898,  s.  2;  30  Stat., 

Foreign  vessels  carrying  passengers  be-  \      248. 
tween  United  States  and  Philippines  _  ]  30  Apr.,  1906,  s.  2 ;  34  Stat., 

Vessel  departing  without  having  left  du-  |      154. 
plicate    manifest    of    lading;    master 
liable R.  S.,  s.  4350. 


948  Appendix. 

Chapter    Ten — Vessel   engaged   in    domestic 
commerce — Continued. 

Master  of  vessel  containing  certain  goods 
failing  to  deliver  up  manifest  before 
unlading,    etc.    ___ __R.  S.,  s.  4352. 

Vessel  proceeding  without  manifest  and 

permit;  master  liable  __R.  S.,  s.  4354. 

Master  of  vessel  under  twenty  tons  fail- 
ing to  deliver  up  manifest R.  S.,  s.  4356. 

Master  of  vessel  failing  to  exhibit  mani- 
fest on  arrival ;  additional  penalty  if 
distilled  spirits  on  board ;  refusing  to 
answer  interrogatories  truly __R.  S.,  s.  4360. 

Refusing  to  deliver  up  permit  for  mer- 
chandise to  be  transported  inland,  etc R.  S.,  s.  4363. 

Fishing  vessels,  permitted  to  land  at  for- 
eign ports,  failing  to  deliver  mani- 
fests and  entries R.  S.,  s.  4364. 

Master  neglecting  to  report  when  vessel 
puts  into  port  other  than  destination R.  S.,  s.  4366. 

Master  of  foreign  vessel  bound  coast- 
wise failing  to  deliver  duplicate  mani- 
fests, etc. ;  refusing  to  swear  to  ver- 
ity of  manifest,  etc. __R.  S.,  s.  4367. 

Master  of  foreign  vessel  bound  coast- 
wise failing  to  deliver  manifest  to  col- 
lector on  arrival ;  failing  to  swear  to 
verity  of  manifest;  failing  to  deliver 
permit    __R.  S.,  s.  4368. 

Vessel  entitled  to  do  documented  trading  (  19  June,  1886,  s.  7 ;  24  Stat., 
without  a  license (      81. 

Making  illegal  enrollment  or  license; 
giving  false  information  as  to  vessel 
to  be  enrolled  or  licensed R.  S.,  s.  4373. 

Failing  or  refusing  to  perform  duties 
prescribed  by  this  chapter R.  S.,  s.  4374. 

Forging  or  altering  enrollment,  license, 
etc.    R.  S.,  s.  4375. 

Obstructing  officers  R.  S.,  s.  4376. 

Chapter  Eleven. — Vessels  engaged  in  fisheries. 
Fisherman  deserting  or  absconding  him- 
self from  vessel R.  S.,  s.  4392. 

Chapter  Tzuelve. — Inspection  of  steam  vessels. 

Inspection  of  sea-going  barges ;  require-  1  28    May,   1908,   ss.   10-13 ;    35 
ments    before    registry ;    penalty    for  r      Stat.,  428. 

violation,  etc. J 

f  R.  S.,  s.  4413. 
Pilot,    mate,   or   master,    etc.,    violating  j  7  June,   1897,  s.   5 ;   30  Stat, 
regulations  relating  to  passing  of  vessels  I      103. 

[  R.  S.,  s.  4416. 
Inspector  serving  without  specified  quali-  \  3  Mar.,  1905,   s.  2 ;   33   Stat., 

fications  [      1029. 

Carry  passengers  and  gunpowder  con- 
trary to  law R.  S.,  s.  4424. 

Inspector     certifying     falsely     touching 

steam  vessels R.  S.,  s.  4425. 

Iimproperly  constructing  boilers S  R-  S.,  s.  4429. 

(  7  Aug.,  1882;  22  Stat.,  310. 


Appendix.  949 

Chapter  Twelve. — Inspection  of  steam  vessels — Continued. 
Affixing  fraudulent,  etc.,  stamp  to  boiler  S  R-   S.,  s.  4430. 

plate   {22   Jan.,    1894;   28   Stat.,   28. 

Counterfeiting    stamps    prescribed    for 
boiler    iron    or    steel    plates ;    falsely 

marking  iron  or  steel  plates R.  S.,  s.  4432. 

Obstructing  safety  valve,  etc. R.  S.,  s.  4437. 

R.   S.,   s.  4438. 
Employing  certain  persons  who  are  not     25  Jan.,   1907 ;   34  Stat.,  864. 

licensed  by  inspectors \  28  May,  1908,  s.  2;   35   Stat., 

425. 
Making  false  oath ;  changing  certificate  _  (  R.  S.,  s.  4445. 

23   Mar.,   1900;    31    Stat.,   50. 
Neglecting  to  place  license  where  it  can  \  R.  S.,  s.  4446. 

be  seen {19  Feb.,  1907;  34  Stat,  897. 

Navigating  vessel  after  notice  to  make 

repairs   R.  S.,  s.  4454. 

Chapter    Thirteen. — Transportation    of   passengers  and  merchandise. 

fR.  S.,  s.  4463. 
Navigating  vessel  with  less  than  requir-  \  2  Apr.,  1908,   s.   1;   35   Stat, 
ed  number  of  licensed  officers  and  men  [      55. 

Violating    rules    governing    regattas    or  C  28  Apr.,  1908,  s.  4 ;  35  Stat, 

marine  parades  {      69. 

fR.   S..  s.  4468. 

Failing  to  keep  passenger  list \  28  May,  1908,  s.  4;  35  Stat., 

[      425. 

Unlawfully  carrying  cotton  or  hemp  _-__R.  S.,  s.  4473. 

Rules   concerning   use   of   petroleum  as  (  R.  S.,  s.  4474.    18  Oct.,  1888 ; 
fuel  and  penalties  for  violation }      25  Stat,  564. 

Shipping  or  attempting  to  ship  danger- 
ous articles  not  duly  marked  or  packed__R.  S.,  s.  4476. 

Failing  to  provide  proper  stairways  — __R.  S.,  s.  4484. 

Failure  to  keep  sufficient  watchmen  on 
vessel  to  guard  against  fire  and  other 
dangers    __R.  S.,  s.  4478. 

Overcrowding    or    occupying    passenger 

space  with  freight,  etc. _ __R.  S.,  s.  4485. 

Manufacturing  or  selling,  etc.,  life-pre-"| 

servers  unlawfully _  constructed ;  manu-  \  R.   S.,  s.  4488.   3   Mar.,   1905, 
facturing    or    selling,    etc.,    inefficient  |      s.  3;  33  Stat,  1024. 

life-preservers,  etc. J 

fR.   S.,  s.  4489.  2  Mar.,   1889, 

Owner  neglecting  or  refusing  to  carry  \      s.    2 ;    25    Stat.,    1012.     11 
life-boats,  rafts,  life-preservers,  etc.  _  [      Apr.,  1892;  27   Stat.,  16. 

Barges    carrying   passengers    failing   to 

have  fire  buckets,  axes,  etc. _ — __R.  S.,  s.  4492. 

Failing  to  keep  on  board  and  to  deliver 
to  passengers  requesting  same,  copies 
of    chapters    twelve    and   thirteen    of 
this    title -R.  S.,  s.  4494. 

Failing  to  keep  name  of   steam  vessel 

painted  in  designated  places   __R.   S.,   s.  4495. 

Customs  officer  negligently  or  intention- 
ally failing  to  require  name  of  vessel 
to  be  placed  on  pilot  house  or  wheel- 
house    R-  S.,  s.  4497. 


950  Appendix. 

Chapter    Thirteen — Transportation    of    pas- 
sengers and  merchandise. — Continued. 
Persons,   etc.,   owning,   etc.,   steam  ves-  f  R.   S.,  s.  4499. 

sels   failing  to  comply  with  terms  of  \  3   Mar.,   1905,   s.  4 ;   33   Stat., 

chapter  of  this  title [      1025. 

Penalty  for  violating  any  of  the  pro- 
visions of  chapters  twelve  and  thir- 
teen of  this  title,  not  otherwise  spe- 
cifically provided  for R.  S.,  s.  4500. 

Chapter  Fourteen. — Rules  of  navigation. 
Rules  for  the  prevention  of  collisions  on 

inland  waters,  and  penalty  for  viola-  \  7  June,   1897,  s.   3 ;   30  Stat, 

tion    _ I      102. 

Rules  to  be  established  by  supervising  (  7  June,   1897,  s.  2 ;   30  Stat., 

inspectors,   and  penalty   for  violation  \      102. 
Rules   for   the   prevention   of    collisions  ]  7   June,  1897,  s.  4 ;   30   Stat, 

on  inland  waters,  and  penalty  against  I*      103. 

vessel  for  violation  J 

Rules  to  prevent  collisions  on  the  Great  {  8   Feb.,   1895,   s.   2;   28    Stat., 

Lakes,  and  penalties  for  violation )      649. 

Owners,   agents,  etc.,    failing  to   report  S  20  June,  1874,  s.  10 ;  18  Stat., 

accidents  to  collectors  of  customs 1      128. 

Owner,  etc.,   failing  to  report  probable  S  20  June,  1874,  s.  11 ;  18  Stat., 

loss  of  vessel,  etc.  }      128. 

f  19  Feb.,  1895,  s.   3 ;   28   Stat., 
Navigating  vessel  without  proper  signal  \      672 ;  7  June,  1897,  s.  5 ;  30, 

lights   _   [      Stat.   103. 

Failing  to  render  assistance  to  vessel  in  S  4  Sept.,   1890,  s.  2 ;  26   Stat., 

distress   _    {      425. 

Chapter   Fifteen. — Reciprocal   privileges. 

Opposing  an  officer  of  the  United  States 
in  enforcing  certain  rules  concerning 
foreign  vessels  that  have  violated  proc- i 
lamation [ 

Persons  of  British  North  America  vi- 
olating rules  and  proclamations  of 
President  concerning  fishing  rights  in 
American   waters   3  Mar.,  1887;  24  Stat,  475 

TITLE    XL  VIII. 

MERCHANT  SEAMAN. 

Chapter  One. — Shipping  commissioners. 

Unauthorized  person  acting  as  shipping 

commissioner  _   R.  S.,  s.  4504. 

Rules  concerning  indenture  of  appren- 
tices and  penalties  for  violation R.  S.,  s.  4510. 

Vessel  carrying  person  to  sea  as  one  of 

crew  without  agreement -_R.  S.,  s.  4514. 

Master    engaging    seamen    contrary    to 

law    _ __R.  S.,  s.  4515. 

Master  engaging  seamen  in  foreign  port 
without  complying  with  provisions  of 
law  R.  S.,  s.  4518. 

Master  failing  to  post  copy  of  shipping 

agreement R.  S.,  s.  4519. 

Master  shipping  seamen  without  articles— R.  S.,  s.  4521. 

Shipping  commissioner,  etc.,  taking  un- 
lawful fees R.  S.,  s.  4595. 


19  June,  1886,  s.  17;  24  Stat, 

82. 


Appendix.  951 

Chapter  Tivo. — Wages  and  effects. 

[21  Dec,  1898,  s.  24;  30  Stat, 

Paying  seamen  advance  wages   <      763. 

I  26  Apr.,   1904;   33    Stat,   308. 
[  21  Dec.,  1898,  s.  24;  30  Stat, 
Demanding,  etc.,  remuneration  for  pro-  <      763. 

viding  seaman   without  employment  _  [  26  Apr.,   1904 ;   33   Stat,   308. 
Falsely  claiming  to  be  relative  of  sea- 
man   _    21  Dec,  1898,  s.  24;  30  Stat, 

763. 
Master   failing  to  take  charge  and  ac- 
count for  deceased  seaman's  effects — R.  S.,  s.  4050. 

Shipping  commissioner  failing  to  deliver 
deceased  seaman's  effects  to  district 
court   _    R-  S.,  s.  4543. 

Chapter  Three. — Discharge. 

Master   discharging  seaman  in  manner 

other  than  that  provided  by  law R.    S.,   s.   4549. 

Master    failing    to    deliver    account    of 

wages  to  discharged  seaman  or  ship- 
ping commissioner R.  S.,  s.  4550. 

Master  failing  to  give  discharged  sea- 
man certificate  of  discharge R.  S.,  s.  4551. 

Chapter  Four. — Protection  and  relief. 

Owner,  master,  etc.,  failing  to  appear  or 

to  produce  books,  etc.,  before  shipping 

commissioner  _  R.  S.,  s.  4555. 

Master   failing  to  apply   for   surveyors  f  R.  S.,  s.  4550. 

upon    complaint    that    ship    is    unsea-  \  21  Dec,  1898,  s.  7 ;  30  Stat., 

worthy    _    [      757. 

f  R.  S.,  s.  4561. 
Sending,  etc.,  an  American  ship  to  sea  i  21  Dec,  1898,  s.  11 ;  30  Stat., 

in  an  unseaworthy  condition [      758. 

Master  failing  to  pay  charges  of  in- 
spection and  wages  R.  S.,  s.  4563. 

f  R.  S.,  s.  4564. 
Master  or  owner  failing  to  provide  suf-  j  21  Dec,  1898,  s.  12 ;  30  Stat., 
ficicnt   quantity  of   stores    [      759. 

Master  failing  to  provide  suitable  pro- 
visions and  water,  after  complaint R.  S.,  s.  4565. 

Master   refusing  seaman   permission   to 

go  ashore  to  make  complaint R.  S.,  s.  4567. 

'26  June,  1884,  s.  11;  23  Stat, 

Owner  failing  to  provide  vessel  with 
slop  chest  


56. 
19  June,  1886,  s.  13;  24  Stat, 
82. 


Owner  or  master  failing  to  provide  ves- 
sel with  medicines,  etc. R.  S.,  s.  4570. 

Master    neglecting    to    serve    out    lime 
juice,  etc   R    S.,  s.  4570. 

Master    failing   to   keep   on   board   and 

use  proper  weights  and  measures R.  S.,  s.  4571. 

Owner    or    master    failing    to    provide  f  R.  S.,  s.  4572. 

warm  clothing  and  room  for   use  of  j  21  Dec,  1898,  s.  15 ;  30  Stat, 
seamen  in  cold  weather [      759. 


952 


Appendix. 


Chapter  Four — Protection  and  relief — Con- 
tinued. 
Rules    concerning    list    of    ship's    crew, 
and  penalties  for  violation R.  S.,  s.  4575. 


Master  of  foreign-bound  vessel  failing 
to  produce  person  on  ship's  list  of 
crew  _  

Master  of  United  States  vessel  refusing 
to  receive  or  transport  indigent  sea- 
man from  foreign  country  to  United 
States   _    

Rules  concerning  extra  payment  to  sea- 
man on  discharge  in  foreign  port  in 
case  of   sale  of   vessel  and   penalties  ■ 
for   violation   


R.  S.,  s.  4576. 

3   Mar.,   1897,   s.   3;   29   Stat, 

688. 
R.  S.,  s.  4578. 
26  June,  1884,  s.  9 ;  23  Stat., 

55. 
19  June,  1886,  s.  18  ;  24  Stat., 

83. 

R.   S.,  s.  4582. 

26  June,  1884,  s.  5 ;  23   Stat., 

54. 
21  Dec,  1898,  s.  17;  30  Stat, 

759. 


Chapter  Five. — Offenses  and  punishments. 
Offenses  of  seamen  or  apprentices : 

\  R.  S.,  s.  4596. 

Deserting  ship \  21  Dec,  1898,  s.  19  ;  30  Stat, 

[      760. 

f  R.  S.,  s.  4596. 
Refusing  to  join  vessel  or  proceed  to]  21  Dec,  1898,  s.  19;  30  Stat, 

sea,    etc.    I      760. 

f  R.  S.,  s.  4596. 
Wilfully  disobeying  any  lawful  com-  -j  21  Dec,  1898,  s.  19 ;  30  Stat., 

mand,  etc. [      760. 

[  R.  S.,  s.  4596. 
Continuing  to  disobey  any  lawful  com-  \  21  Dec,  1898,  s.  19 ;  30  Stat., 

mand  _   [      760. 

f  R.  S.,  s.  4596. 

Assaulting  master  or  mate \  21  Dec,  1898,  s.  19 ;  30  Stat., 

[      760. 

f  R.  S.,  s.  4596. 
Damaging  vessel  or  embezzling  stores  J  21  Dec,  1898,  s.  19 ;  30  Stat., 

[      760. 

fR.  S.,  s.  4596. 
Smuggling,   etc.    \  2i  Dec,  1898,  s.  19 ;  30  Stat, 

I      "60. 
Refusing  to  do  or  doing  certain  acts  in 

willful  breach  of  duty  or  by  reason  of 

drunkenness  _   __R.  S.,  s.  4602. 

S  R.  S.,  s.  4606. 

Boarding  vessel  before  arrival }  31    Mar.,    1900 ;   31    Stat,   58. 

|  R.  S.,  s.  4607. 

Soliciting  seaman  as  lodger |  13  Apr.,  1904;  33   Stat,  174. 

Master    to    enforce     provision     against 

carrying  sheath  knives  on  vessels R.  S.,  s.  4608. 

\  R.  S.,  s.  4611. 

Master,  etc.,  inflicting  corporal  punish-  \  21  Dec,  1898,  s.  22 ;  30  Stat, 

ment  that  is  forbidden  by  law [      761. 

Detaining  clothing  of  seaman  unlawfully  {  18   Feb.,   1895 ;   28   Stat,  667. 

Ill   Apr.,   1904;   33   Stat.,   168. 


Appendix.  953 

TITLE    L  . 

THE  CENSUS. 

Receiving  fee,  etc.,  for  securing  appointment,  \  3  Mar.,  1899,  s.  20 ;  30  Stat., 

etc.,  of  another \      1020. 

Supervisor   or   other   employee    refusing  or  1  2  July,  1909,  s.  22 ;  36  Stat., 

neglecting  to  perform  duties,  false  swear-  J-      8. 

ing,  or  making  false  returns,  etc. J 

Refusing  information  to  enumerator,  etc. 2  July,  1909,  s.  23 ;  36  Stat.,  8. 


Officer  or  agent  of  manufacturing  establish- 
ment refusing  to  give  information,  or 
giving  false  information  to  officer  <  ■  agent 
of  census  _  


2  July,   1909,  s.   24;  26  Stat, 
9. 


TITLE    LI. 

COMMON  CARRIERS  OF  INTERSTATE  AND  FOREIGN 

COMMERCE. 

Chapter    One. — Regulations    of    transporta- 
tions. 
Making  unreasonable  or  unjust  charge]  29  June,  1906,  s.  1 ;  34  Stat., 
for    transportation   of    passengers    or  J-      584. 

property   _    J 

Free  transportation  of  passengers  for-  S  29  Jur>e,  1906,  s.  1 ;  34  Stat., 

bidden   \      584. 

Railroads  not  to  carry  products  in  which  S  29  June,  1906,  s.  1 ;  34  Stat., 

interested   _    }      585. 

Railroads  to  construct  switches  and  to  |  29  June,  1906,  s.  1 ;  34  Stat., 

furnish  cars  to  shippers   (      585. 

[4   Feb.,   1887,   s.   2 ;   24   Stat., 
Making  of  special  rate  or  giving  of  re-  |      379. 

bate   unlawful   \2  Mar.,  1889,  s.  2;  25   Stat., 

[      857. 

I  4   Feb.,   1887,   s.    3;   24   Stat., 
Undue  preferences  to  persons,  localities,  I      380. 

and  traffic  prohibited \  2   Mar.,  1889,  s.  2;  25  Stat, 

[      857. 

f  4   Feb.,    1887,   s.   4;   24   Stat, 
Charge  for  short  haul  not  to  be  more  I      380. 

than  for  long  haul  -j  2   Mar.,  1889,  s.  2;  25  Stat, 

[      857. 

f4   Feb.,   1887,   s.   5;   24   Stat, 
Pooling    of    freight    or    earnings    with  |      380. 
others   prohibited   -{  2  Mar.,  1889,  s.  2;   25  Stat. 

[      857. 
Charge  for  joint  interchangeable  mile-  [8  Feb.,  1895;  28  Stat,  643.. 

age  or  tickets  to  be  uniform \  2  Mar.,  1889,  s.  2;   25  Stat, 

[       857. 
Willful  failure  to  file  and  publish  sched-  I  29  June,  1906,  s.  2;  34  Stat, 

ules  of  rates  and  fares 1      587. 

Willful  failure  to  observe  schedules  of]  29  June,  1906,  s.  2;  34  Stat, 
rates  and  fares  published  until  changed  }■      587. 
according  to  law  J 


954  Appendix. 

Chapter  One. — Regulations  of  transportations. — Continued. 


Carrier  not  to  engage  in  interstate  com- 
merce until  schedule  of  rates  and 
fares  are  filed;  nor  to  charge  differ- 
ent rates  than  those  in  schedule ;  nor 
refund  any  portion  of  rates  and  fares 


2   Mar.,   1889,   s.  2;   25   Stat., 

857. 
29  June,  1906,  s.  2 ;  34  Stat., 
587. 
\i  Feb.,   1887,  s.   7;   24   Stat, 
Combinations  to  prevent  continuous  car-  I      382. 

riage  of   freights  \  2  Mar.,  1889,  s.  2;   25   Stat, 

[      857. 
Punishment   for  violation  of   interstate  f  2  Mar.,  1889,  s.  2 ;   25  Stat., 
commerce   law,   to   which   no    specific  j      857. 

penalty  is   attached    [ 

Unlawful  to  offer  or  give,  or  to  solicit  ]  29  June,  1906,  s.  2 ;   34  Stat., 
or  receive  rebate,  for  property  trans-  ^      587. 

ported    J 

Carrier  receiving  or  accepting  compen-  ]  29  June,  1906,  s.  2 ;  34  Stat., 
sation  as   rebate   for  property  trans-  j-      588. 

ported   _    J 

[2  Mar.,  1889,  s.  2 ;  25   Stat, 
False  billing,  false  classification,  or  false  I      858. 

weighing  of  property  transported \  19  Feb.,  1903,  s.  1 ;  32  Stat., 

847. 
Obtaining    transportation    at    less    than  f  2  Mar.,  1889,  s.  2 ;  25  Stat, 
regular  rates  by  means  of  false  bill-         858. 
ing,  false  classification,  or  false  rep--  19  Feb.,  1903,  s.  1;  32  Stat., 

resentations   _    [      847. 

2   Mar.,   1889,   s.  2 ;   25   Stat, 
858. 
Shipper  inducing  discrimination  in  rates  \  19  Feb.,  1903,  s.  1 ;  32  Stat., 

[      847. 
Act  of  officer  or  agent  to  be  also  deemed  {  29  June,  1906,  s.  2;  34  Stat., 
act  of  corporation  \      587. 

Chapter   Two. — Interstate    Commerce   Com- 
mission. 
Punishment  for  refusal  to  testify  before  \  11  Feb.,  1893,  s.  1 ;  27  Stat, 

Commission   _    \      443. 

Failure  of  carrier  to  obey  order  of  the  \  29    June,    1906,    ss.    4,    5 ;    34 

Commission   _   \      Stat,  589,  591. 

Failure  of  carrier  to  file  annual  reports  \  29  June,  1906,  s.  7 ;  34  Stat., 

required  by  Commission {      593. 

Failure  of  carrier  to  keep  accounts  and  ]  29  June,  1906,  s.  7 ;  34  Stat., 

records    required     by     Commission ;  j-      594. 

agent   divulging   information    j 

Willfully    making    false   entries    in   ac- 
counts,  or   keeping   unauthorized   ac-  (  29  June,  1906,  s.  7 ;  34  Stat, 

counts    _     {      594. 

Chapter   Three. — Safety  appliances  on  rail- 
road cars. 
Common   carrier   using    locomotive   en-  f  2  Mar.,  1893,  s.  1 ;  27  Stat, 
gine  not  equipped  with  a  power  driv-  \      531. 

ing-wheel   brake,   etc.    [l   Apr.,  1896;  29   Stat,  85. 

Common  carrier  hauling,  etc.,  cars  used  f  2   Mar.,  1893,  s.  2 ;    72  Stat , 
in  moving  interstate  traffic  not  equip-  \      531. 
ped  with  automatic  couplers   [ 


Appendix.  955 

Chapter   Three — Safety  appliances  on   rail- 
road cars — Continued. 
Common  carrier  using  car  in  interstate 2   Mar.    1893,   ss.   4,  6 ;  27. 

commerce   not   equipped    with   proper  j-      Stat,  531. 

grab    irons    J 

Common  carrier  using  cars  in  interstate  ]  2  Mar.,  1893,  ss.  5,  6;  27  Stat, 

traffic    not    equipped    with    draw-bars  }      531. 

of  standard  height J 

Common  carrier  failing  to  make  month-  )  3    Mar.,    1901,    ss.    1,    2;    31 

ly    report    to     Interstate     Commerce  \      Stat,   1446. 

Commission  of  all  accidents   J 

Using    locomotive     not    equipped     with  J  30  May,  1908,  s.  3 ;  35  Stat., 

proper  ash  pan {      476. 

Chapter  Four. — Care  of  animals  in  transit. 

Confining  live  stock  longer  than  twen-  f  R.  S.,  s.  4386. 

ty-eight  hours  without  unlcading  f or  -j  29    June,    1906,    ss.    1,    2;    34 
rest,  water,  and  food [      Stat,   607. 

Chapter   Six. — Arbitration   between   carriers 
and  employees. 
Employer  demanding  agreement  of  em-  ]  1  June,  1898,  s.  10 ;  30  Stat., 
ployee  not  to  join  union,  threatening  j-      428. 
him  with  loss  of  employment,  etc. J 

Chapter   Seven.    Hours   of   sendee    of   em- 
ployees. 
Common    carriers    requiring    employees  ]  4    Mar.,    1907,    ss.    2,    3 ;    34 
to    remain    on    duty    longer    than    16  \      Stat.,  1416. 
hours ;  train  dispatchers  and  telegraph  | 
operators  longer  than  9  and  13  hours-  J 

TITLE    LII. 

COMBINATIONS    IN    RESTRAINT    OF    TRADE. 

Making  contract  or  engaging  in  combination,  \  2  July,   1890,   s.   1 ;   26   Stat., 

etc.,  in  restriini:  of  trade \  209. 

Monopolizing,  etc.,  trade  among  the  several  f  2   July,   1890,  s.  2 ;   26   Stat., 

States,   etc.    \  209. 

Making  contract  in  restraint  of  trade,  etc.,  in  f  2  July,   1890,   s.   3  ;   26   Stat., 

Territories  or  District  of  Columbia \  209. 

Persons  entering  into  combination,  trust,  etc.,  ] 

with    another    for    purpose    of    importing  \  24  July,  1897,  s.  34 ;  30  Stat , 

goods,  intended  to  operate  in  restraint  of  j  213. 

trade,  increase  prices,  etc. J 

TITLE    LIV. 

REGULATIONS   OF  EXPORTATION,  IMPORTATION,  AND 

TRANSPORTATION  OF  ANIMALS,  FOODS  AND 

INSECT  PESTS. 

Chapter  One. — Inspection  of  animals,  meats, 
and  dairy  products  for  exporta- 
tion. 
Rules  concerning  inspection,  etc.,  of  ani-  1  30  June,   1906,   34   Stat.,  674. 
mals    intended    for    exportation,    and  \  4  Mar.,   1907,  34   Stat,  1260. 

penalties  for  violation J 

Bribery  of   inspectors  of  meats  and  of  j  30   June,   1906,   34   Stat,   678. 
animals  intended  for  slaughter \  4  Mar.,  1907,  34  Stat,  1264. 


956  Appendix. 

Chapter   Tzvo. — Protection  against  importa- 
tion  and   transportation   of   in- 
fected animals,  meats  and  adul- 
terated foods. 
Violation  of  regulations  to  prevent  in-  f  30  Aug.,  1890,  s.  10;  26  Stat., 
traduction   of   contagious   diseases  of  J      417. 

animals   _   ]2    Feb.,    1903,    ss.    2,    3;    32 

Stat,   792. 

Importation  of  diseased  animals __30  Aug.,  1890,  s.  6 ;  26  Stat.; 

416. 
Transportation  of  live  stock  from  quar-  S  3    Mar.,    1905,    ss.    2,    6 ;    33 

antined  districts   1      Stat,   1264. 

Moving  live  stock  from  quarantined  dis-  S  3   Mar.,    1905,     ss.    4,   6 ;     33 

trict  contrary  to  regulations 1      Stat,  1265. 

Violating  regulation  respecting  exporta-  [  29    May,    1884,    ss.    4,    5 ;    23 
tion  and  transportation  of  live  stock  '      Stat,  32. 


from  infected  district 


2    Feb.,    1903,    ss.    1,     3;     32 
Stat,  791. 


Chapter   Three. — Regulation   of  importation 
and     transportation     of    foods, 
drugs,  grain,  and  seeds. 
Importation  and  transportation  of  adul-1  30  June,  190C,  s.  2;  34  Stat, 
terated  or  misbranded  foods  or  drugs  r      768. 

J 
Manufacture   of  adulterated    foods   and  ]  30  June,  1906,  s.  1 ;  34  Stat., 
drugs  in  Territories  and  District  of  !-      768. 
Columbia J 

Chapter  Four. — Regulation  of  transportation 
of  insect  pests. 

Transporting  certain  insect  pests --3    Mar.,    1903,    ss.    1,    4 ;    33 

Stat,    1269. 

Sending  insect  pests  by  mail   3   Mar.,   1905,  s.  2;   33   Stat, 

1270. 

Chapter    Five. — Regulation    of    'preparation, 
sale,    and    interstate    traffic    in 
viruses,  serums,  etc. 
Violation   of    rules    concerning    produc-  ]  1    July,    1902,     ss.     1-7 ;     32 
tion,   inspection,  and   sale  of  viruses,  \      Stat,  728. 

serums,  etc.   J 

Interfering  with  officer  or  employee  of  f  1   July,    1902,    ss.    6,    7 ;     32 
Treasury  Department  \      Stat,  728. 

TITLE    L  V  . 

IMPORTATION   OF  ADULTERATED   TEAS   AND   IMPORTA- 
TION OF  OPIUM  BY  CHINESE  PROHIBITED. 

Chapter  Tzvo. — Importati  ■%  of  opium  by 
Chinese,  and  exportation  to 
China  by  citizens  of  the  United 
States,  prohibited. 

Importing  of  opium  by  Chinese --23  Feb.,  1887,  s.  1 ;  24  Stat., 

409. 
Citizens    of     United     States     importing  S  23  Feb.,  1887,  s.  3 ;  24  Stat., 

opium  into  open  ports  of  China \      409. 

Unlawfully  bringing  into  United  States,  1  9   Feb.,   1909,   s.   2;   35    Stat, 
or     buying,     selling,     or     concealing  \      614. 
opium  so  brought J 


Appendix.  957 


Chapter  Three. — Regulation  of  importation, 
transportation,  and  exportation 
of  falsely  stamped  merchandise, 
and  the  landing  and  sale  of 
sponges. 


21    Feb.,    1905,    ss.    1,    2;    33 
Stat.,    732. 


13    June,    1906,    ss.    4,    5;    34 


Stamping  the  words  "United  States  As- 
say" on  goods  manufactured  from 
gold  or  silver  which  enter  into  Inter- 
state  Commerce  

Falsely  stamping  as  to  fineness  or  qual- 
ity  of    metal    articles    manufactured  \      34  Stat,  260. 
from   gold  or  silver  J 

Stamping     the     words     "sterling"     or  ]  13   June,   1906,   ss.   4 ,   5 :    34 
"coin"  on  gold  or  silver-plated  mer-  [      Stat.,  261. 
chandise     J 

Unlawful  landing,  delivery,  or   sale  of 

sponges   _   20  June,  1906;  34  Stat,  313. 

TITLE    L  V  II  . 

LIGHTS  AND  BUOYS. 

Maintaining  light,  or  other  aid  to  navigation  1  20  June,  1906,  s.  3 ;  34  Stat., 

without  permission  of  Light-House  Board  j-      324. 
Failure  to  maintain  lights  on  bridges  over  j  14  May,  1908,  s.  5 ;  35  Stat , 

navigable    waters    (      162. 

TITLE    LVIII. 

PROTECTION   OF   FUR   SEALS. 

'  T\   S.,  S.   1956. 
Killing    of    fur    seals    within   the    limits    of     2  Mar.,  1889,  s.  3 ;  25  Stat., 

Alaska,  including  Bering  Sea \      1009. 

I  3  Mar.,  1899,  s.  173 ;  30  Stat, 
{      1279. 

fR.   S.,   ss.    1960,   1961. 
Killing  of    fur   seals   on    St.    Paul   and    St  {  3  Mar.,  1899,  ss.  177,  178 ;  30 

George  islands [      Stat.,  1280. 

Killing  female  seals,  or  seals  less  than  one  f  R.  S.,  s.  1961. 
year  old -j  3  Mar.,  1899,  s.  178;  30  Stat, 

I      1280. 

Killing  seals  on  St.  Paul  and  St.  George  is- 
lands, without  authority  of  lessees __R.  S..  ss.  1861,  1967. 

Citizens   of   United   States   equipping  vessel )  29  Dec,  1897,  ss.  1,2,3;  30 
for   killing,   or   killing   fur    seals    in   cer-  [      Stat,  226. 
tain  parts  of  Pacific  Ocean J 

TITLE     L  X  . 

LABOR. 

Chapter  Two. — Hours  of  labor.  • 

Requiring    employees    on     Government]  1  Aug.,  1892,  s.  2;  27  Stat, 
work  to  labor  more  than  eight  hours  [      340. 
per  day,  etc.  J 


958 


Appendix. 


TITLE    L  X  I 

IMMIGRATION. 


20  Feb.,  1907,  s.  3 ;  34   Stat., 
899. 


Chapter  One — Regulation  of  immigration. 
Importation  of  women  for  purpose  of 
prostitution,  or  for  other  immoral  pur- 
pose ;  harboring  for  immoral  pur- 
pose alien  woman  or  girl  within  three 
years  after  entry  into  United  States . 
Aiding    anarchist    to    enter    the    United 

States     -20  Feb.,  1907,  s.  38  ;  34  Stat, 

908. 

Soliciting   the    importation    of    contract  \  20    Feb.,    1907,    ss.    4,    5 ;    34 

laborers {      Stat.,   900. 

Advertising  to  encourage   immigration. — 20  Feb.,  1907,  ss.  4,  5,  6;  34 

Stat.,  900. 
Soliciting     of     immigration    by     vessel 

owners    _    20  Feb.,  1907,  ss.  4,  5,  7;  34 

Stat,  900. 
Illegal  bringing  in  or  landing  of  aliens___20  Feb.,   1907,  s.  8  ;   34   Stat., 

900. 
Bringing  in  persons  afflicted  with  loath-  \  20  Feb.,  1907,  s.  9 ;  34  Stat., 

some  or  contagious  disease   )      901. 

Copies  of  immigration  laws  to  be  posted  \  3   Mar.,    1893,  s.  8;  27   Stat., 

up  in  foreign  countries ]      570. 

List  of  alien 

immigration 

sel _~_ J 

Officers  of  vessels  permitting  the  illegal  (20  Feb.,  1907,  s.  18;  34  Stat., 

landing  of  aliens \      904. 

Return  by  steamship  company  of  aliens  (20  Feb.,  1907,  s.  19;  34  Stat., 

illegally  landed 1      904. 

Chapter   Two. — Exclusion  of    Chinese    per- 
sons. 
Master  of  vessel  refusing  or  neglecting  ]  5  July,    1884,   s.   8 ;   23   Stat., 

to  deliver  list  of  Chinese  persons  on  (.      117. 

board  . 


passengers  to  be  furnished]  20  Feb.,  1907,  ss.   12,   15;   34 
n  officers  by  master  of  ves-  \      Stat.,  901. 


Master    of    vessel    unlawfully    bringing 


13    Sept.,   1888,    ss.    9,    10;    25 
Stat,   478. 


into   the   United   States   Chinese  per-  \  29  Apr.   1902,  s.  1  ;  32  Stat., 


sons 


Bringing    into    United    States    by    land  f  5  July,   1884,  s.  11;  23  Stat, 
Chinese  person   


Forgery  of  certificate  issiu  I  to  Chinese 
person ;  false  personation 


170. 


!       117. 
13    Sept.,    1888,    ss.   9,    10;    25 

479. 
5   May,    1892,   s.   8;   27   Stat. 

26. 
29  Apr.,   1902;  32  Stat,  176. 
Violation  of  other  provisions  of  Chinese 

exclusion    laws    5  July,  1884,  s.  16;  23  Stat., 

118. 

Chapter  Three. — The  cooley  trade. 

Building,  equipping,  etc.,  vessel  for  the 

cooley  trade  R.  S.,  s.  2160. 

Receiving  or  transporting  coolies R.    S.,  s.  2161. 

Transporting,    etc.,    subject     of     China,  \  3   Mar.,   1875,   s.   2;   18   Stat., 

Japan   etc.,    without  consent   }      477. 

Contracting    or    attempting    to    contract  \  3   Mar.,  1875,  s.  4 ;   18   Stat, 

to  supply  cooley  labor  |      477. 


Appendix.  959 

TITLE    LXII. 

NATURALIZATION  AND  EXPATRIATION. 

Chapter    One. — Naturalisation. 

Clerk  of  court  of  other  person  illegally  }  29  June,  1906,  s.  18 ;  34  Stat, 

issuing  certificate  of  naturalization (      602. 

Clerk  or  other  officer  of  court  neglect-  ]  29  June,  1906,  s.  20  ;  34  Stat., 

ing  to  render  accounts  of  money  re-  \      602. 

ceived   in  naturalization   proceedings-  J 
Clerk  of  court  or  other  officer  issuing  S  29  June,  1906,  s.  22 ;  34  Stat., 

false  certificate  or  acknowledgments-  |      603. 

Fraudulently  obtaining  naturalization 29  June,  1906,  s.  23 ;  34  Stat., 

603. 

TITLE    LXIV. 

CIVIL  RIGHTS. 


Persons  not  to  be  discriminated  against  in 
inns,  public  conveyances,  theatres,  etc.,  on 
account  of  race  or  color ;  penalty 

District  attorneys,  marshals,  etc.,  failing  to 
enforce  provisions  of  civil  rights  act 

Persons  not  to  be  excluded  as  jurors  on  ac- 
count of  race  or  color  

Marshal  or  deputy  refusing  to  execute  pro- 
cess issued  under  provisions  of  this  Title 


1    Mar.,    1875,    ss.    1,     2;     18 
Stat,  336. 

1   Mar.,   1875,  s.  3 ;   18    Stat, 

336. 
1   Mar.,  1875,   s.   4 ;   18   Stat, 

336. 


R.   S.,  S.   5517. 

TITLE     LXVI. 

THE  SEAT  OF  GOVERNMENT. 

Chapter  One. — Public  buildings,  parks,  and 
wharves. 
Tapping,    without   authority,    pipes    laid 

by   United    States    R.    S.,   s.    1803. 

Willfully  breaking,  etc.,  water  pipes  in 

District  of  Columbia __R.  S.,  s.  1804. 

Maliciously    making    water    supply    of 

District  of    Columbia   impure   __R.   S.,   s.   1806. 

Chapter  Two. — Capitol  building  and  grounds. 

Regulations   concerning  use  of    Capitol  ]  1    July,     1882,     ss.     1-7 ;     22 
grounds,  and  penalties   for  violation-  \      Stat.,  126. 

TITLE    LX  VII. 

RAILWAYS  AND  TELEGRAPH  COMPANIES. 

Chapter  Two. — Submarine  cables. 

Breaking,  injuring,  or  aiding  or  abetting  \  29  Feb.,  1888,  s.  1;  25  Stat, 

the  injuring  of  submarine  cable 1      41. 

Breaking    submarine   cable   by   culpable  j  29  Feb.,  1888,  s.  2 ;  25   Stat., 

negligence ]      41. 

Rules  to  be  observed  by  master  of  ves-  j  29  Feb.,  1888,  s.  4 ;  25  Stat., 

sel  laying  cable,  and  other  vessels  in  >      41. 

proximity,  and  penalties  for  violation  J 


960  Appendix. 

Chapter  Two — Submarine  cables — Continued. 

Master  of  fishing  vessel  failing  to  keep  ]  29  7eb.,  1888,  s.  5 ;  25  Stat., 
nets,  etc.,  more  than  a  nautical  mile  \     41. 
from  vessel  laying  cable J 

Refusing  to  produce  certain  papers  nee-  j  29  Feb.,  1888,  s.  7  ;  25  Stat., 
essary   for  the  preparation  of   speci   \      42. 
fied   statements    J 

Master  liable  in  case  of  certain  viola- 
tions   —29  Feb.,   1888,  s.  9;   25   Stat, 

42. 

TITLE    LXVIII. 

BANKRUPTCY. 

Chapter  Four. — Courts  and  procedure  there- 
in. 
Offenses  against  bankruptcy   laws,  and  J  1  July,  1898,  s.  29;  30  Stat., 
penalties  for  violation  {      554. 

TITLE    LXIX. 

INSURRECTION. 

Trading  in  insurrectionary  States,  or  certain 

other  places,  without  a  license,  etc. R.  S.,  s.  5306. 

Trading  in  captured  or  abandoned  prop- 
erty     R.  S.,  s.  5313. 

TITLE    LXXII. 

PUBLIC   PRINTING. 

Chapter  One. — Public  Printer,  duties,  etc. 

Public    Printer    colluding,    etc.,    to    de- ]  R.    S.,   s.    3784. 

fraud  United   States  \12  Jan.,  1895,  s.  33;  28  Stat, 

J      605. 
Public  Printer  or  other  employee  having  |  R.  S.,  s.  3765. 

interest    in    contracts    for    paper    or  \  12  Jan.,  1895,  s.  34 ;  28  Stat, 
other  material  for  public  printing J      605. 

TITLE    L  XXIII. 

HOMES  FOR  VETERANS. 

Chapter  Two. — The  National  Home  for  Dis- 
abled Volunteer  Soldiers. 
Trespassing  upon,  or  violating  rule  for  1  22    Mar.,    1906,    ss.    2,   4 ;    34 
the  Government  of   Battle   Mountain  \      Stat.,  83. 
Reserve,  South  Dakota  J 

TITLE    LXXIV. 

PENAL  AND   REFORMATORY   INSTITUTIONS. 

Chapter    One. — Custody    and    transportation 
of  prisoners. 

Hiring  out  United   States  convicts 22    Feb.,    1887,    ss.    1,    2;    24 

Stat,  411. 


Appendix.  961 

Chapter  Three. — Reform  School  for  Boys. 

Enticing  away  or  harboring  escaped  in-  j  3  May,  1876,  s.  11 ;  19  Stat., 
mates  of  Reform  School  for  Boys —  (      51. 

TITLE    LXXV. 

HOSPITALS,  ASYLUMS,  AND  CEMETERIES. 

Chapter    One. — The     Government     Hospital 
for  the  Insane. 
Making  false  affidavit  as  to  insanity  of 

person,  or  physician  making  false  cer-     27  Apr.  1904,  s.  6 ;   33   Stat.. 
tificate i      318. 

Chapter  Three. — National  cemeteries. 

Defacing  national  cemetery  by  destroy- 
ing, mutilating,  etc.,  any  monument, 
grave-stone,  etc.,  or  breaking  or  in- 
juring any  tree,  shrub,  etc. R.  S.,  s.  4881. 

TITLE    LXXV I. 

NATIONAL  MILITARY  PARKS. 

19  Aug.,  1S90.  s.  10;  26  Stat.. 

335. 

27   Dec.   1S94,   s.   7;   2*   Stat., 

598 
Defacing  National  Military  Park-Injuring  ^  s  ,.   g 

monument — Injuring  trees  and   shrubs,  or  !       „_9 

fence  or  inclosure |  ?   £r     ^   s_   1;  29   gtat> 

J  21   Feb.,   1899,  s.    7;   30   Stat.. 

Hunting   or   trapping   on   National    Military 

Park ___3    Mar..   1897,   s.   2;   29    Stat.. 

621. 
Unlawfully   refusing   to   give   up   possession  \  3   Alar..   1897,   s.   4;   29   Stat., 

of  land  in  park  leased  for  other  purposes  \      621. 

TITLE     L  X  X  V  I  I  . 

NATIONAL   PARKS. 

Rules    concerning   hunting   and    fishing,   and]  7   May.    1894,   s.   4;   28    Stat.. 

preservation  of  natural  objects  in  Yellow-  \      73. 

stone  Park,  and  penalties  for  violation J 

Laws  of  Wyoming  made  applicable  to  Yel-  ]  7   May.   1894,   s.    5 ;   28    Stat., 

lowstone   Park   in   certain   cases   not   pro-  \      73. 

vided  for  in  the  United  States  laws j 

Unlawful    settlement    or    residence,    etc.,    in  S  22   May.   1902,  s.  3 :   32   Stat.. 

Crater   Lake   Park   /      203. 

Trespassing  on  Wind  Cave  National  Park 9  Jan.,   1903.   s.    6;    32   Stat., 

766. 
Molesting  or  destroying  buildings,  relics,  or  {  29    June.    1906,    ss.    3,    4;    34 

ruins  in  Mesa  Verde  National  Park \      Stat.,   617. 

Trespassing   upon   or    injuring   buildings    or  \  21  Apr..  1904,  s.  18;  33  Stat.. 

springs    in    Piatt    National    Park    {      220. 

61 


INDEX 

A. 

ABATEMENT,  plea,  illegally  secured  evidence,  8;  41;  44;  45. 

ABORTION,  see  postal  offenses;    also  561. 

ACKNOWLEDGMENT,  forged,  349;    770. 

ACCESSORIES,  653. 

ACCOMPLICE,   118;    white   slave,   635;    accessories,   653. 

ADMIRALTY   RULES,   233. 

ADVERTISEMENT— on  U.  S.  Security  and  in  resemblance  of,  265;  270. 

ADULTERY,   563. 

AGRICULTURE— secretary — future  trades,  673;  powers  of,  674;   stock- 
yard regulations,  675. 

AID  AND  ABET,  postmaster,  215;  generally,  652;   see  National  Banks. 

ALIBI,  233. 

ALIENS,  115-118;  deported  for  certain  practices,  634. 

ALIEN  PROPERTY  ACT,  233. 

ALASKA  COURTS,  119. 

AMENDMENT  TO  CONSTITUTION,  1-4;   adopted  how,  4. 

ANIMAL    INDUSTRY— BUREAU,    employees,    interfering    with,    390; 
783;    transportation  of,  454. 

ANTI-PASS-LAW,   453. 

APPEAL  AND  WRIT  OF  ERROR,  119;   120;    125;    143;    233. 

APPENDIX,  755-911,  Penal  Code. 

APPROPRIATION— Contract  in  excess  of,  320;    797. 

ARRAIGNMENT,  49. 

ARREST  OF  JUDMENT,  234. 

ARSON,  murder,  etc.,  see  Postal  Crimes,  179;  181;  what  is,  etc.,  540. 

ARGUMENT,  improper,  69;  72;  75;  242. 

ARMY  &  NAVY,  120;   234;   to  serve  against  U.  S.,  411;   officers,  quali- 
fications to  vote,  441;   enticing  to  desert,  776;  see  United  States. 

ASSISTANT  DISTRICT  ATTORNEY,  111. 

ASSIGNMENT  OF  ERRORS,  119;    120;    122;    125;    143. 

ASSAULT  TO  COMMIT  MURDER,  rape,  robbery,  etc.,  536. 

ATTEMPT  TO  COMMIT  MURDER,  or  manslaughter,  537. 


964  Index. 

AUDITOR — Postoffice     Department,     transcript     from,     evidence,     227. 
AUTOMOBILE,  theft,  interstate,  462. 

B. 

BAIL,  no  excessive,  4;  bail  bond,  penalty  remitted,  6;  49;  during  trial, 
50;  51;  forfeiture  and  relief,  51;  100;  after  affirmance,  101;  matter 
of  discretion,  when,  101;  102;  voluntary  giving  no  defense,  102; 
see  supersedeas, 

BANKS,  see  National  Banks. 

BANKER,  receiving  deposit  from  disbursing  officer,  318;   796. 

BANKRUPT — offenses — act,  610;  decisions,  612;  corporation,  614;  part- 
nership, 617;  failure  to  pay  over  money,  618. 

BAWDY  HOUSE,  235. 

BID,  forgery,  340;  to  prevent  bid  on  government  land,  782. 

RILL  OF  ATTAINDER,  3. 

BILL  OF  LADING,  fraudulent,  213. 

PILL  OF  PARTICULARS,  122. 

BIRDS — importation  of,  migratory,  etc.,  454;    456;    Hunting  and  eggs, 

677;   791;   pigeons,  678. 

BODY— of  offender,   652. 

BOND,  see  bail;  forgery  of,  340. 

BRIBERY,  306;  judge  or  judicial  officer,  306,  809;  810;  member  of 
Congress,  309;  324;  800;  officer,  331;  U.  S.  officer,  374;  775;  804; 
see  officer;  see  Congress,  juror,  referee,  etc.,  810;   witness,  810. 

BUTTER,  adulterated,  235;   see  Int.  Rev. 

C 

CARRIER — see  Common  Carrier. 

CKNSUS— offenses,   685. 

CHECKS,  falsely  certifying,  591;  see  National  Banks. 

CHALLENGES,   52. 

CHARGE  OF  COURT,  89. 

CHARGE  ON  GOOD  CHARACTER,  86. 

'  MFLD  LABOR  LAW,  235. 

CHINAMEN,  115;   118. 

CITIZENSHIP— certificate  of— forgery,  397;  falsely  claiming,  402;  789; 
false  oath  in  naturalization,  403;  civil  rights,  conspiracy  to  injure, 
128. 

CIVIL  RIGHTS-  conspiracy  to  injure,  428;  right  to  labor,  433;  voting, 
137;    right   to   inform   of    violation   of   law,   438;    right   of  one   in 


Index.  965 

custody  to  protection,  438;  other  crimes  against,  440;  depriving 
under  color  state  law,  440;  conspiracy  to  prevent  holding  office. 
441;  troops  at  election,  441;  intimidation  of  voters,  etc.,  441;  con- 
spiracy against,  763;    764;    766. 

CIVIL  SERVICE — forgery  of  examination,  344;  cohabitation — unlaw- 
ful, 562. 

CLAIMS — taking  papers  relating  to,  377;  775;  persons  interested  in. 
not  to  act  as  U.  S.  agent,  377;  776;  800. 

CLAYTON  ACT,  136-141;    235. 

CLERK,  of  court — loan  from,  320;  see  court  officers. 

COINS,  267-270;   271;   272;   273. 

CODE,  judicial,  25. 

CODE,  penal,  755. 

COMMENTS,  District  Attorney,  69;  court,  80;  by  court,  91;  by  court, 
93. 

COMMON  CARRIER,  not  to  collect  purchase  price,  452;  see  also 
explosives;  interstate  commerce;  falsifying  accounts  of,  693. 

COMMON  LAW,  no  jurisdiction,  22;   offenses,  236. 

COMMISSION— accepting  foreign,  758. 

COMMISSIONER  OF  INTERNAL  REVENUE,  certain  regulations  by, 

247. 

COMMISSIONER,  U.  S.,  27. 

COMPENSATION,  illegal,  postmaster,  214;   civil  remedy,  215. 

COMPROMISE,  569. 

COMMUNIST   PARTY,   117. 

CONFEDERATE  MONEY,  259. 

CONFESSION,  58;   239. 

CONGRESS— members  of,  accepting  bribe,  309;  324;  800;  801;  802; 
see  political  elections,  676;    contracts,  interest  in,  802-803. 

CONSPIRACY— to    intimidate   witness,   party,   officer,   juror,    301. 
757;  to  injure  citizens  civil  rights,  428. 

CONSPIRACY— against  U.   S„   362;    773;    venue,   367;    seditions,   411; 

CONSOLIDATION  OF  INDICTMENTS,  53;    56. 

CONSTITUTION,  U.  S.  1;  Art.  V.  1;  Art.  VI  1-2;  Art.  Ill  2;  Art.  1. 
sec.  8;  2;  power  granted  and  result,  2;  guarantees,  3-22;  violation 
of,  presumes  injury,  4. 

CONTEMPT,  4;  29;  35. 

CONTINUANCE,  126. 

CONTRACT  LABORERS  IMPORTED,  117. 

COPYRIGHT,  wilful  infringement,  682. 

CORRESPONDENCE— criminal,   680;    756. 


966  Index. 

CORPORATION,  indictment  of,  123;  must  not  contribute  money  to 
politics,  404;    791;   contributions  by,  678. 

CORRUPTION — conviction  not  to  work,  643. 

CORPUS  DELICTI,  236. 

COTTON,  future  contracts,  463. 

COSTS,  court,  in  criminal  cases,  237. 

COUNSEL,   advice  of,  236. 

COUNSEL,  right  to,  4. 

COUNTS,  56. 

COUNTERFEITING;  M.  O.  220;  postage  stamps,  domestic  or  foreign, 
223;  plates  for,  251;  having  possession  of,  251;  U.  S.  securities, 
255;  Nat.  Bank  notes,  258;  confederate  money,  259;  other  securities 
and  State  Bank  notes,  259;  knowledge,  261;  bills  expired  corpora- 
tion, 263;  mutilating,  etc.,  264;  advertisements,  264;  gold  or  silver 
bars,  267;  similitude,  268;  minor  coins,  270;  coins  resemblance,  271; 
devices  for  minor  coins,  272;  dies,  etc.,  273;  to  be  forfeited,  274; 
search  warrant,  275;  see  forgery;  weather  reports,  337;  weather, 
390;  783;  all  sorts  of  monies,  816. 

COURTS,  birth  and  jurisdiction,  25;  what  is,  27;  comments  by,  80;  91; 
instructions  of,  89;  postal  crimes  in,  149;  meaning  of,  245;  state, 
248;  state,  644;  see,  also,  state  laws;  embezzlement  by  officers  of, 
675. 

COURT  OFFICERS— see  officers. 

CRIMES,  infamous,  misdemeanors,  9;  10;  controlled  by  Federal  stat- 
utes and  courts,  only,  21;  22;  postal,  147;  statutes,  753. 

CRIMINAL  INTENT,  242. 

CROP — reports  information  as  to,  336. 

CROP  REPORTS,  806;   see  officer. 

CROSS  EXAMINATION,  237. 

CUSTOMS — forging  certificate  of  entry  etc.,  390;  concealment  of  in- 
voices, 391;  admitting  merchandise  at  less  than  legal  duty,  394; 
false  samples,  395;  false  certifications,  396;  collector  of,  to  detain 
vessels,  when,  425;   see  smuggling. 

D. 

DATE,  in  indictments,  238. 

DECOYS,  159-160;    163;    237;    240. 

DEFENDANT,  indigent,  process  for,  19;  trial  of,  while  serving  term, 
248. 

I  >K  PENDANT,  failure  to  testify,  71;   76. 

DEED,  power  of  atty,  etc.,  forging,  344. 
DK.MAND  ON  DEF'T  FOR  EVIDENCE,  238. 
INSERTER,  see  Army  &  Navy. 


Index.  967 

DISBURSING    OFFICER— offenses    by,    793;    see    officers;    see    public 

money;  deposit  from,  796. 

DISBURSING  OFFICER— embezzlement  by,  315. 

DISCHARGE,  see  Army  &  Navy. 

DISQUALIFICATION   OF   JUDGE,   129. 

DISTRICT  ATTORNEY— improper  argument,  69;  72;  in  grand  jury 
room,   77;    242. 

DOCUMENTARY,  evidence  secured  illegally,  practice,  65. 

DOUBT,  reasonable,  154. 

DYNAMITE,  etc.,  not  to  be  carried,  443. 

DUPLICITY,  57;   154. 

DUE  PROCESS  OF  LAW,  4. 

DUNS  ON  POSTAL  CARDS,  etc.,  187. 

DURESS,   239;    see  confessions. 

DWELLING,  private,  entry  and  search,  5-22. 

DYING  DECLARATIONS,  19. 

E. 

EDITORIALS,  paid,  180. 

EIGHT  HOUR  LAW,  239. 

EIGHTEENTH  AMENDMENT,  476. 

ELECTIONS— primary,  442. 

EMBEZZLEMENT,  postal  funds,  225;  different  species,  315;  disbursing 
officer,  315;  prima  facie  evidence  of,  317;  795;  Internal  Revenue 
officer,  319;  arms,  stores,  etc.,  360;  773;  bank,  596;  598;  796;  by 
court  officers,  675;   public  money,  685;   778. 

EMPLOYEES,  federal,   injured  and  compensated,  240. 

ENLISTING  IN  FOREIGN  SERVICE,  or  against  U.  S.,  757;   758. 

ENTICING — desertions,  378;    776;    away  workmen,  378;    777. 

ENTRAPMENT,  159-160;  163;  237;  240. 

ERRORS,  assignment,  etc.,  119;    120;   technical,  122;    125;    143. 

ESPIONAGE  ACT,  181. 

EXAMINATION,  cross,  237. 

EXCEPTIONS,  in  statutes,  241. 

EXECUTION — see  prisoner — recruiting  prisoner,  813. 

EXPATRIATION,  117. 

EXPERT,  testimony,  240. 


968  Index. 

EXPLOSIVES,  in  mails,  231;  in  interstate  commerce,  443;  444;  I.  C. 
Commission  to  make  regulations  about,  445;  nitro-glycerine,  etc., 
445;  marking  pkgs,  446;   death  by,  446. 

EX  POSTO  FACTO  LAW,  3. 

EXTORTION— Internal  Revenue  informers,  305;  by  any  officer,  311; 
793. 

EXTRADITION,  3;   127;  547. 

EVIDENCE,  secured  illegally  and  return  of,  5-22;  illegallly  secured 
is  inadmissible,  5-22;  against  self,  13;  illegal  before  grand  jury, 
44;  destruction  of,  may  be  proven,  44;  confessions,  58;  secured 
illegally,  63;  65;  method  for  recovering  illegally  secured,  67;  no 
right  to  compel  deft,  to  produce,  68;  of  good  character,  85;  of 
other  offenses,  86;  113;  handwriting,  145;  postmark,  177;  of  postal 
funds,  transcript,  of  auditor  admissible,  227;  demand  on  defendant 
for,  238;  demurrer  to,  238;  refreshing  memory,  246;  of  embezzle- 
ment, 317. 

F. 

FALSE   BILLING,  243. 

FALSE   CERTIFICATE    BY    OFFICER,    322;    799. 

FALSE  CLAIMS,  354;   772. 

FALSE  CLAIM  FOR  DAMAGES  TO  SHIPMENT,  243. 

FALSE  DEMAND— or  power  of  attorney,  354;   771. 

FALSE  IMPRISONMENT,  void  warrant,  5. 

FALSE  PERSONATION,  holder  public  stocks,  353;   771. 

FALSELY  PRETENDING  TO  BE  U.  S.  OFFICER,  350;   771;   784. 

FALSE  RETURNS,  to  increase  postoffice  revenue,  213. 

FARM  LOANS   STATUTES,   676. 

FEDERAL    EMPLOYEES,    injured    and    compensated,    240. 

FEDERAL  STATUTES  ALONE  CONTROL,  21;   22. 

FEDERAL  TRADE  COMMISSION,  138. 

FEDERAL  TERRITORY— offenses,  525;    defined,   526;    ceded  to  U.   S., 
526. 

FELONY,  misprision  of,  305;    what  is,  653. 

FICTITIOUS  NAME,  postal  crime,  202. 

FILTHY,  see  Postal  crimes. 

FINE — abated  by  death,  recovery,  creditor's  bill,  101. 

FOOD  AND  FUEL— hoarding  of,  676. 

FOOD  AND  DRUGS— Act,  619;   criminal  sections,  619;   decisions,  620; 
misbranded,  626. 

FORGERY — see   counterfeiting,   signature   of  judge,   etc.,   297;    letters 
patent,  339;    768;   bond,  bid,  public  record,  340;   768;   civil  service. 


Index.  90!) 

344;  false  claims,  344;  deeds  power  of  attorney,  etc.,  344;  769; 
papers,  in  possession,  349;  770;  acknowledgments,  345;  770;  cus- 
toms certificate,  390;  certificate  of  citizenship,  397;  398;  787; 
weather   forecast,   783;    land   warrant,   7S6;    ship's  papers,   786. 

FOREIGN  GOVERNMENT— criminal  correspondence  with,  410;  ac- 
cepting foreign  commission,  415;  see  neutrality;  foreign  vessels  to 
deport,  424;   criminal  correspondence  with,  680. 

FORNICATION,  565. 

FORTIFICATION,  etc.,  injuries  to,  379;  military  reservation  entering, 
379. 

FORMER  CONVICTION  OF  WITNESS,  112. 

FORMS — for  indictment;  embezzlement,  694;  710;  misconduct  officers 
ship,  695;  conspiracy  to  violate  lottery  statute,  696;  conspiracy  to 
deny  civil  rights,  698;  peonage,  699;  700;  721;  polygamy,  701;  I. 
R.  C.  D.,  701;  olemargarine,  702;  conspiracy  to  plunder  vessel,  703; 
government  timber,  703;  bribery,  705;  larceny,  705;  708;  natural- 
ization, 706;  708;  subornation  of  perjury,  706;  murder,  708;  falsely 
certifying  checks,  709;  pretending  officer,  711;  conspiracy  v.  U.  S., 
712;  obscene  matter,  713;  breaking  into  P.  O.,  713;  fraudulent  use 
of  mail,  714;  735;  false  returns  by  P.  M.  to  increase  compensation, 
715;  perjury,  716;  717;  forgery  National  Bank  notes,  719;  counter- 
feiting, 719;  coins,  720;  receipting  for  larger  sums,  721;  meat 
inspection  law  destroying  or  altering  tags,  727;  Department 
Agriculture  tags,  728;  harboring  prostitutes,  729;  violating  qiiar 
antine  Act,  731;  conspiracy  to  violate  White  Slave  Act,  739; 
Jack  Johnson  indictment  white  slave,  740;  for  writ  of  error,  747. 

FRAUD  ORDER,  247. 

FRAUDULENT  USE  OF  MAILS,  188;  247;  fraud  order,  247. 

FREE  WHITE  PERSON,  116. 

FREE  SPEECH,  241. 

FUTURE  TRADING  ACT,  666;   tax  on  options,  etc.,  G67. 

G. 

GOLD  OR   SILVER  BARS— counterfeiting,  267. 

GOOD  CHARACTER,  85;   88. 

GOVERNMENT— our  systems,  427. 

GRAIN— future  trades,  666. 

GRAND  JURY,  20;  27;  36;  evidence  before,  40;  political  complexion. 
43;  returned  in  what  district,  43;  illegal  evidence  before,  44; 
District  Attorney  in  room,  77;  misconduct,  77;  improper  person  in 
room,  109;    hearsay  testimony  before,   111. 

GUILTY,  court  cannot  instruct,  233. 

H. 

HABEAS  CORPUS,  not  suspended,  3;  104;  military  and  state  courts, 
105;   not  used  is  writ  of  error;  to  state  court,  241. 


970  Index. 

HANDWRITING,  comparison,  etc.,  rule,  145. 

HARD  LABOR,  654. 

HARRISON  LAW,  see  opium. 

HEARSAY  TESTIMONY  BEFORE  GRAND  JURY,  111. 

HEPBURN  ACT,  242. 

HIGH  SEAS,  decisions  and  crimes,  558. 

HOARDING  OF  FOOD  AND  FUEL,  676. 

HOMICIDE,  530. 

HUSBAND  CANNOT  BE  WITNESS  FOR   WIFE,  248. 

HUNTING  BIRDS  AND  TAKING  EGGS,  677;   791. 

I. 

ILLEGAL  SEARCH,  5-22. 

IMMIGRATION  ACTS,  116. 

IMMUNITY  OF  WITNESS,  13-22;  5;   13;   107;  promises  of,  247. 

IMPEACHMENT  OF  VERDICT,  53;   54. 

IMPROPER  ARGUMENT,  69;    72. 

IMPROPER  PERSON  IN  GRAND  JURY  ROOM,  109. 

IMPRISONMENT,  FALSE,  void  warrant,  5;  for  debt,  not  allowed,  233; 
where,  654. 

INCEST,   564. 

INCOME  TAX,  242. 

INDECENT,  see  postal  crimes. 

INDIGENT  DEFENDANT,  process  for,  19;   121;   144. 

INDIAN,  242. 

INDIAN  COUNTRY— intoxicating  liquors   in,   682. 

INDICTMENT,  4;  copy  of,  furnished,  when,  21;  36;  40;  return  of, 
etc.,  38;  54;  motion  to  quash,  41;  43;  44;  defect  in,  after  verdict, 
44;  motion  to  quash,  additional,  45;  consolidation  of,  53;  endorse- 
ment of,  55;  56;  courts  in  reference  to  each  other,  56;  place  of 
finding,  56;  presence  of  judge,  56;  duplicity,  57;  of  corporation, 
123;   date  in,  238;   negativing  exceptions,  241;    unknown,  248. 

INFORMATION,   10;    36;    42;    45. 

INJUNCTION,  242;   248. 

INSANITY,  from  drugs  or  liquors,  244. 
INSURANCE— war  risk,  679. 
INSTRUCTIONS  OF  COURT,  89. 


Index.  971 

intent,  criminal,  242. 

INTEREST,  on  criminal  judgment,  242. 

INTERNAL  REVENUE,  see  butter;  officer;  embezzlement  by,  319; 
796;  extortion  by,  see  extortion;  resisting  officer  of,  destroying, 
etc.,  property,  391;  784;  presents  to  officer,  393;  784;  offer  of 
compromise,  569;  tax  paid  first,  570;  partnerships,  57;  must  ex- 
hibit stamps,  571;  rectifiers,  dealers,  etc.,  572;  "business,"  572; 
C.  O.  D.,  573;  cases,  575;  proof  of  license,  577;  distiller,  577; 
breaking  locks,  signs,  etc.,  578;  concealment,  books,  etc.,  579; 
stamps  off  emptys,  580;  reuse  packages,  etc.,  581;  removing,  etc., 
582;  olemargine,  583;  see  intoxicating  liquors;  see  Volstead  Act; 
see  officer;   pretending  to  be  Revenue  officer,  784. 

INTERSTATE  COMMERCE— witness  as  before,  immunity,  17;  false 
billing  and  false  claim  for  damages  to,  243;  443;  explosive,  reg- 
ulations, 445;  liquors,  449;  wild  animals,  birds,  reptiles,  etc.,  454; 
transportation  of  animals,  etc.,  456;  457;  458;  obscene  matter,  458; 
theft  of  goods  in,  460;  auto,  462;  cotton  futures,  463;  regulations 
of,  471;   commission,  471;   carrier  falsifying  accounts,  693. 

INTIMIDATION  OR  CORRUPTION  OF  WITNESS,  or  juror  or  officer, 
297. 

INTOXICATING  LIQUORS,  to  Indians,  243;  interstate  shipment  of. 
marks,  etc.,  449;  common  carrier  not  to  collect,  etc.,  452;  marking 
packages,  453;  history  of  acts,  475;  see  internal  revenue,  also 
Volstead  Act;    in  Indian  Country,  682. 

J. 

JUDGE,  absence  of,  56;  improper  emphasis,  75;  comments  and  atti- 
tude of,  80;  83;  disqualification  of,  129;  intimidation  or  corrup- 
tion, 297;  bribery  of,  306. 

JUDGMENT,  arrest  of,  234;   interest  on  criminal,  242. 

JUDICIAL  CODE,  25. 

JEOPARDY,  11;   19. 

JURISDICTION— see  state  laws — state  courts— U.  S.  courts;  constitu- 
tional provisions. 

JURORS,  grand  and  petit,  20;  27;  36;  44;  challenges,  52;  jury  trial, 
priceless,  77;  waiving  of,  etc.,  79;  drawing  of,  80;  care  of,  83; 
setting  aside  verdict,  85;  corruption  or  intimidation  of,  297;  at- 
tempt to  influence,  302;   812;  bribery,  306;   810. 

K. 

KIDNAPPED — person,  bringing  into  U.  S.,  523. 
KNOWLEDGE,  postal  violations,  168-177;  counterfeiting,  261. 


LABOR,  Eight  Hour  Law,  239;  enticing  away  workmen,  378;  injuries 
to  fortifications,  379;  right  to,  433;  importing  contract  labor,  636; 
see  Hard  Labor. 

LANDS,  public,  245;  to  prevent  hids  on,  782. 


972  Index. 

LAND  SCHEMES,  fraudulent,  210;   212. 

LARCENY,   541;    see  theft;    see  embezzlement. 

LETTER  CARRIERS,  246. 

LETTERS  PATENT— forgery  of,  768;  339. 

LEVER  ACT,  5;   245. 

LIBEL — not  federal  offense,  543. 

LIBELOUS,  indecent  wrappers,  postal  crimes,   182. 

J. IMITATIONS,  134;   689. 

LIQUORS,  soliciting  ads,  231. 

LOAN  COMPANY,  fraudulent,  210;  212. 

LOTTERY,  etc.,  postal  crimes,  204. 

M. 

MAIL,  postal  violations,  see  postal  crimes;    carrying   illegally,   231. 

MANDAMUS,  to  compel  U.  S.  court,  246. 

MANSLAUGHTER,  534;    536;    attempt  to,  537. 

MARRIAGE  CERTIFICATE— failure  to  record,  564. 

MARSHAL,  U.  S.  and  deputies,  appointment,  etc.,  246. 

MATERIALITY— wilfulness— in  perjury,  282. 

MEMORY,  refreshing,  246. 

MILITARY — see  Army  &  Navy;   injuring  fortification — entering  reser- 
vation, etc.,  379;   777;   see  reservation;   land  warrant,  forgery,  786. 

MINOR,  see  Army  &  Navy. 

MISAPPLICATION,  see  National  Banks. 

MISAPPROPRIATION,  of  postal  funds,  225. 

MISDEMEANORS,  what  are,  653. 

MISPRISION— of  felony,  305. 

MONEY  ORDER,  issuing  without  money,  219;  counterfeiting,  etc.,  220. 

MONEYS— public— offenses    as    to,    315;    316;    failure    to   keep,    to    ac- 
count, to  deposit,  etc.,  316;  embezzlement  of  deposit,  685. 

MONOPOLY,  136-141;  235. 

MONUMENTS— government— destroying,    etc.,    781;    see    military;   see 
reservation;  fences;  gates,  etc.,  781. 

MORAL  TURPITUDE,  115. 

MOTION  TO  QUASH,  246. 

MURDER,  530;   536;   assault  to  commit,   536;   attempt  to,  537. 
MURDER,  arson,  etc.,  postal  crimes,  179;  181. 


Index.  973 

MUTILATING,  etc.,  IT.  S.  Security,  264. 
MUTINY,  548. 

N. 
NARCOTIC— see  opium. 

NATIONAL  BANKS,  589;  Federal  Reserve,  590;  608;  aiding  and 
abetting,  591;  falsely  certifying  checks;  wilfully,  595;  acting  by 
others,  595;  embezzlement,  etc.,  596;  598;  false  enteries,  599; 
abstraction,  600;  misapplication,  601;  books  admission,  606;  sec. 
5200,  609. 

NATURALIZATION— false  personation,  etc.,  398;  using  false  cer- 
tificate or  denying  citizenship,  etc.,  400  as  evidence  of  right  to 
vote,  401;  false  oath  in,  403;  790;  provisions  for  all  courts,  404; 
to  cancel  certificate,  404. 

NEW  TRIAL,  133. 

NEWSPAPER,  paid  "ads"   etc.,  180;    false  affidavit  as  to   circulation, 

246. 

NEUTRALITY — offenses  against,  413;  President's  power  to  enforce, 
414;  accepting  foreign  commission,  415;  enlisting  in  foreign  serv- 
ice, 415;  arming  vessels  against  people  at  peace  with  U.  S.,  416; 
augmenting"  force  of  foreign  vessel  of  war,  419;  military  ex- 
peditions against  people  at  peace  with  U.  S.,  420;  enforcement  of! 
neutrality  acts,  423;  compelling  foreign  vessels  to  deport,  424; 
armed  vessels  to  give  bond  on  clearance,  424;  detention  by  col- 
lector of  customs,  425;  construction  of  these  acts,  426. 

NITRO-GLYCERINE,  etc.,  not  to  be  carried,  etc.,  445. 

NOLO  CONTENDERE,  131. 

NOTARY  PUBLIC  NOT  KNOWN  TO  U.  S.,  47. 

NOTES,  of  less  than  dollar,  266. 

O. 

OATH  OF  OFFICE,  postal,  213. 

OBSCENE,  etc.,  matter,  168;  see  postal  crimes,  177;  in  interstate  com- 
merce, carrier,  458;  561;  798;  aiding  in  trading  in. 

OBLIGATION— or  security  of  U.  S.,  249;   815. 

OBSTRUCTING — process,  etc.,  289;  advice  may  be,  294. 

OFFICER— intimidation  or  corruption  of,  297;  bribery  of,  306;  804; 
who  is,  307;  extortion  by,  312;  793;  receipting  for  larger  sums 
than  paid,  3;  4;  793;  disbursing  officer  embezzling,  315;  318;  793; 
embezzlement  by,  319;  contract  by  excess  appropriation,  320; 
failing  to  deposit  funds  of  U.  S.,  320;  receiving  loan  from  clerk, 
etc.,  of  court,  320;  797;  failure  to  make  report  or  return,  321; 
trading  in  obscene  literature,  321;  forbidding  to  trade  public 
funds,  321;  798;  making  false  certificate,  322;  799;  illegal  fees, 
322;  pension  agent  taking  fees,  322;  799;  not  interested  in  claims 
v.  U.  S.,  323;  bribery  of,  331;  775;  decisions  bribery,  333;  po- 
litical contributions,   334;    giving  out  advance   information   of   re- 


974  Index. 

port  on  crop,  336;  806;  false  statistics,  337;  806;  counterfeiting 
weather  forecasts,  etc.,  337;  pretending  to  be,  350;  bribery  of, 
374;  809;  who  is,  376;  resisting,  391;  pretending  to  be,  391;  784; 
offering  presents  to,  393;  taking  property  from  revenue  officer, 
397;  disqualification  from  holding,  442;  embezzlement  by  court 
officers,  675;  797;  render  account  of  money,  794;  failing  to  make 
returns,  798;  obscene  matter,  798;  witness  fees,  799;  false  cer- 
tificate, 799;  steamboat  inspector,  799;  must  not  claim  v.  U.  S.,  800. 

OLEOMARGARINE,  583. 

OPINION  OF  COURT,  80-91;  93. 

OPIUM,  464;   decisions,  509;   627;   constitutional,  629. 

ORDERING  GOODS,  no  intention  to  pay,  postal  crime,  192. 

ORDINANCE — purchase,  sale  or  disposal  of,  412. 

OTHER  OFFENSES,  86;  113. 

OUTSIDE  COVER,  or  wrapper,  postal,  what  is,  185. 

P. 

PACIFIC  ISLANDS,  sale  of  arms  or  intoxicants,  557. 

PANDERING,  see  white  slave. 

PARDON,  cannot  compel  acceptance  of,  17;  power  to,  651;  acceptancer 
of  and  power,  continued,  651;    see  parole. 

PAROLE,  see  pardon;  see  punishment;  see  sentence;  acts  relating  to, 
655;   688. 

PARTICULARS,  bill  of,  122. 

PASSPORTS,  246. 

PASSENGERS— customs  duties,  658. 

PASS  ANTI  LAW,  459. 

PATENT,  'etters,  forgery  of,  339;   768. 

I'AUPER,  defendant,  process,  19;  120;  144;  witness  for,  655;  right 
of  appeal,  655. 

PERJURY,  277-807;  form  of  oath,  277;  competent  tribunal,  etc.,  278; 
must  be  authorized,  280;  U.  S.  Com.,  281;  materiality  and  wil- 
fulness, 282;  indictment,  284;  proof,  285;  cases,  286;  subornation 
of,  287;    808;   elements,  288. 

PENAL  CODE,  755— appendix— 755-911. 

PEONAGE,  520;    see  slaves;    obstructing  peonage  law,  526. 

PIGEONS,  homing,  678. 

PILLORY— abolished,  644. 

PIRACY,  544;   545;   555;   556;   557. 

PLATES,  counterfeiting,  251. 


Index.  975 

poison  in  mails,  231. 

political  complexion  of  grand  jury,  43. 

POLITICAL  CONTRIBUTIONS,  334;  678;  686;  804;  805;  soliciting  in 
public  buildings,  687;    805. 

POLITICAL  ELECTIONS,  corporations  not  to  contribute  to,  404; 
political  contributions,  publicity,  655;  contributions  to  influence 
election  of  Congressmen,  676;   678. 

POLYGAMY,  562. 

POOR,  see  pauper. 

POSTAL  CRIMES,  147;  149;  breaking  and  entering  P.  O.,  149;  postal 
car,  postal  clerk,  152;  robbing,  assaulting  carrier,  letter  boxes, 
etc.,  153;  obstructing  mail,  155;  mail  on  train,  156;  ferryman,  157; 
detaining  or  destroying  newspapers,  157;  detaining  or  destroying 
mail,  158;  opening  another's  mail,  158;  164;  decoys,  159-163; 
stealing,  etc.,  mail,  164;  injury  to  letter  boxes,  153  and  164;  mail 
protected,  168;  obscene  matter,  168;  prevention,  abortion  and  con- 
ception, 168-177;  scurrilousness,  177;  knowledge,  177;  indecent, 
filthy,  168-188;  arson,  murder,  assassination,  179;  181;  prize  figlu 
films,  179;  paid  editorial  to  be  marked  "ad,"  180;  libelous,  in- 
decent wrappers,  etc.,  182;  outside  cover  or  wrapper,  185;  duns, 
postal  cards,  etc.,  187;  fraudulent  use  of  mail,  188;  threatening 
letter,  191;  fictitious  names,  202;  lottery,  204;  postmaster  not  to  be 
lottery  agent,  213;  oath  of  office,  failure  to  take,  no  defense,  213; 
false  return  to  increase  compensation,  213;  civil  remedy,  com- 
pensation, 215;  unlawful  postage,  216;  stamps,  unlawful  sale  or 
pledge  of,  216;  stolen  property,  possession  of,  218;  failure  to 
account  for  postage  and  to  cancel  stamps,  218;  money  order,  is- 
sue without  money,  219;  conviction  under  one  no  bar  to  under  an- 
other, when,  220;  counterfeiting  M.  O.,  counterfeiting  postage 
stamps,  domestic  or  foreign,  223;  misappropriation  of  funds,  225; 
rural  carriers  responsible  for  funds,  228;  stealing  postoffice  prop- 
erty, 229;  other  offenses,  229;  carrying  mail  illegally,  231;  poisons 
and  explosives,  231;  liquor,  ads,  231;  fraud  order,  247;  false 
evidence  as  to  second  class  mail,  680;  cancelled  stamps,  etc.,  681; 
pension  agent  taking  fees,  322. 

PRACTICE,  23;  114. 

PRELIMINARY  PROCEEDINGS,  45. 

PRESIDENTIAL  WARRANT,  247;    power  to  enforce  neutrality,  414. 

PREVENTION  OF  CONCEPTION,  168;   see  postal  crimes. 

PRIMARY  ELECTIONS,  442. 

PRINCIPALS,  who  are,  652;    653. 

PRISONERS,  247;  see  sentence;  allowing  to  escape,  303;  812;  rescuing 
or  concealing,  304;  813;  of  executed,  305;  813;  814. 

PRIVATE  DWELLING,  entry  and  search,  5;  22. 

PRIVATE  PROSECUTOR,  3. 

PRIZE  FIGHT  FILMS,  179;   566. 

PRIZE  PROPERTY,  delaying  or  defrauding  captor  or  claimant,  etc., 

774. 


976  Index, 

probable  cause,  3. 

PROCESS,  stealing  or  altering,  288;   obstructing,  289;    813;    assaulting 
officer,  289;  813;  advice  may  be,  294. 

PRODUCTION,  documentary  evidence,  forced,  68. 

PROHIBITION,  statutes  and  searches  and  seizures,  8;  see  Volstead 
Act. 

PROPERTY,  destroying  or  rescuing,  391;   778. 

FROSTITUTES,  harboring,  642;   see  white  slave  act. 

PUBLIC  LAND,  245;  timber,  385;  386;  387;  fires  on,  388;  breaking 
fences,  388;  monuments,  388;  bids  for,  389. 

PUBLICITY,  of  contributions,  655. 

PUBLIC  MONEYS,  embezzlement,  etc.,  of  315;  316;  321;  777;  778 
treasurer  failing  to  keep,  794;  custodians,  794;  render  accounts, 
794;  797;  failure  to  deposit,  795;  797;  see  embezzlement;  see 
officers. 

PUBLIC  MONEY,  embezzlement,  deposit  of,  685;  778;  disbursing 
officer,  converting,  etc.,  793. 

PUBLIC  RECORDS,  stealing  or  destroying,  294;  809;  by  officer  in 
charge,  296;  809;  forgery  of,  340;   809. 

PUBLIC  STOCKS,  false  personation  of  holder,  350. 

PUNISHMENT — forms,  643;  no  corruption  of  blood  or  forfeiture,  643; 
whipping  and  pillory  abolished,  644;  state  courts,  644;  see  sen- 
tence; see  verdict;  body  of  offender,  652;  hard  labor,  654;  imprison- 
ment, 654;  parole,  655;  688. 

R. 

RAILROADS,  Interestate  Commerce  Commission,  471. 

RAPE,  537;  of  female  passenger  on  ship,  538. 

REASONABLE  DOUBT,  154. 

REBELLION,  756;  757. 

ROBBERY— or  larceny,  U.  S.  property,  379;   380;   540;   777. 

RECEIPTING  FOR  LARGER  SUMS  THAN  PAID,  314;   793. 

RECEIVERS  OP  STOLEN  PROPERTY,  382;   541;   778. 

RECRUITING— soldiers  or  sailors  to  serve  against  U.  S.,  411. 

REED  AMENDMENT,  450;  475. 

REGULATIONS,  by  Com.  Int.  Rev.,  247. 

REMOVAL,  48. 

REPEAL  OF  LAW,  right  to  prosecute,  247. 

KKPTILES,  importation,  etc.,  454. 

RESERVATION— U.    S.    see    military;    also,    781;    monuments,    fences, 
gates  etc.,  781;  surveys,  781. 


Index.  977 

REVENUE  LAW,  what  is,  247;  resisting  officer,  391;  presents  to  officer, 
393;  taking  seized  property,  397. 

RURAL  ROUTE,  carriers,  responsible  for  funds,  228. 

S. 

SAILORS— Shanghaiing,  679,  790. 

SALE,  what  is,  247. 

SEAMEN,  the  act,  247. 

SEARCH  WARRANT,  5-22;  275;  see  searches  and  seizures,  688;  ship- 
ment, false  claim  for  damages  to,  243;  stamps,  unlawful  sale  or 
pledge  of,  216;   failure  to  cancel,  219;  state  court  jurisdiction,  248. 

SEARCHES  AND  SEIZURES,  3;  5-22;  see  search  warrant;  seizures, 
venue,  692. 

SECOND  CLASS  MAIL,  evidence  as  to,  680. 

SECURITY— of  U.  S.,  249;  255;  258;  mutilating  or  putting  advertise- 
ments, 264;  265;  notes  of  less  than  one  dollar  not  to  be  issued,  266; 
to  be  forfeited,  274. 

SEDUCTION,   of   female   passenger,   538. 

SENTENCE — correction — place,  etc.,  94;  97  resentencing,  99;  247;  see 
prisoners;    see  punishment;   good  behavior,  688. 

SERUMS,  245. 

SEVERANCE,  102. 

SHERMAN  LAW,  136-141. 

SIMILITUDE— in  counterfeiting,  251;  268. 

SLAVES,  511;  seizing,  bringing  into  U.  S.  equipping  vessel  for,  513; 
transporting,  514;  hovering  on  coast  with  slaves  aboard,  514;  serv- 
ing on  vessel  engaged  in  slave  trade,  514;  receiving  or  carrying 
away  person  to  be,  515;  equipping  vessel  for,  515;  continued, 
516-520;   peonage,  520;   see  white  slave. 

SMUGGLING,  657;  passengers,  658;  officers,  659;  false  samples,  664; 
concealing  or  destruction  of  invoices,  664;  783;  decisions,  664: 
various  offenses  under  these  acts,  785. 

SPEEDY  TRIAL,  4. 

SPEECH,  free,  241. 

STATE  LAWS,  punishment  under,  542;  560;  state  courts,  644;  conflict 
with  federal,  645;  649. 

STEALING,  postoffice  property,  229;  court  process,  288;  public  records, 
294;  U.  S.  property,  379;   380;   receivers  of,  382;   541;  778. 

STEAMBOAT— inspector— illegal   fees,  322;    799. 

STENOGRAPHER'S  NOTES,  13;   44. 

STOLEN    PROPERTY,    possession    of,    218;    receiving,    778;    see   other 
"Property"  Head. 
62 


978  Index, 

stockyard  regulations,  675. 

STRIKES,  248. 

SUBORNATION  OF  PERJURY,  287;  attorney  suborning,  288;  elements 
of,  288. 

SUBPOENA  DUCES  TECUM,  247. 

SUPERSEDEAS,  119;  143;  see  bail. 

SUSPENSION  OF  SENTENCE,  96. 

SUPREME  COURT,  direct  to,  119;    120. 

SUPREME  LAW,  1. 

T. 

TECHNICAL  ERRORS,  122, 

TELEGRAPH,  telephone  U.  S.  injuries,  etc.,  389;    678;    782. 

TERRITORY  CODE,  559. 

TESTIMONY,  expert,  241. 

THEFT — see  embezzlement,  U.  S.  property;  larceny;  of  goods  in  inter- 
state shipment,  460;   auto,  462. 

THREATENING  LETTERS — threats;    see  postal  crimes,  also,   191. 

TIMBER— depredations,  383;    778;    779;    780. 

TRADE  COMMISSION,  Federal,  138. 

TRADING  WITH  THE  ENEMY  ACT,  248. 

TRAIN  ROBBERIES,  566. 

TRANSPORTATION,  government  control,  248. 

TREASON,  3;   5;   755;   misprision  of  treason,  409;    755;    seditious  con- 
spiracy, 411. 

TREASURER— failing  to  keep  public  moneys,  794. 

TRIAL,  3;   19:    public,  26:    constitutional,  26;    27;    of  defendant  while 
he  is  serving  term,  248. 

TRUST  STATUTES,  136-141. 

U. 

UNITED  STATES  COMMISSIONER,   27. 

UNITED  STATES  CONSTITUTION,   1. 

UNITED   STATES,   recruiting   soldiers   or   dailors   to  serve   against— 
enlistment  against,  757;  enlisting  in  foreign  service,  758. 

UNITED  STATES,  suits  against,  248;  vessels  of,  defined,  558;  exclusive 
jurisdiction,  649. 

"UNKNOWN,"   in   indictment,   248. 


Index.  979 

cnlawful  postage,  216. 
'•unreasonable  charge,"  4;  643. 

UNREASONABLE    SEARCHES    AND    SEIZURES,    3;     5-22;    665;    see 
Volstead. 


V. 

VENUE,  indictment  returned  where,  43;  56;  change  of,  248;  691; 
civil  and  criminal,  691;  seizures,  692. 

VERDICT,  impeachment  of,  53;  54;  setting  aside,  85;  94;  coercing  of: 
motion   to  direct,   etc.,   141;    qualified,   652;    see  punishment. 

VESSEL,  punishment  for  bringing  in   improper  immigrants,   117;    se- 
duction of  passenger,  538;   loss  of  life  by  misconduct  of  officer  on, 
etc.,  538;    what  is,  539;    mistreatment  of  crew,   546;    mutiny,  548 
abandonment  of  mariners,  551;  to  cast  away,  552;  plundering,  552 
destroying,   554;    running  away  with,  567;    of  U.   S.   defined,   558 
penal  provisions  as  to,  see,  759;  papers,  786. 

VIRUSES,  245. 

VOID  WARRANT  NO  PROTECTION,  5;    68. 

VOLSTEAD  ACT,  476;  penalties,  493;  witnesses,  incriminating,  494; 
venue,  494;  affidavit  or  indictment,  bill  of  particulars,  495;  posses- 
sion of  liquor,  495;  private  dwelling,  495;  records,  496;  liquor  taxes, 
compromising,  etc.,  496;  employees  to  enforce,  498;  industrial  al- 
chol,  499;  property  of  non-violator,  499;  tax  free  alcohol,  denatur- 
ing, etc.,  502;  decisions  under  act,  505;  repeals  some  revenue  laws, 
506;  conflict  of  state  and  federal  under  act,  645. 

VOTE — false  certificate  of  citizenship  used,  401;  789;  right  to,  437; 
intimidation  of  voters,  soldiers  at  polls,  441;  officers  of  army  and 
navy,  44. 

W. 
WAIVING   OF   JURY,   79. 

WARRANT,  issue  only  upon  probable  cause,  etc.,  3;  search  warrant, 
5-22;  void  warrant  no  protection,  5;  268;  to  issue  when,  46;  by 
President,   247;    688. 

WAR— INSURANCE,    679. 

WEATHER  FORECASTS,  counterfeiting,  etc.,  337;   390. 

WHITE  SLAVE,  act,  631;  decisions,  632;  pandering,  636;  act,  638; 
decisions  under  both  acts,  639;  wife  witness,  when,  640;  harboring 
prostitutes,  etc.,  642. 

WHIPPING— abolished,  644. 

WIFE,    cannot   be    witness    for    husband,    248;    see    White    Slave,    640. 

WILFULNESS— in  perjury,  282;    Bank  violations,   595. 

WITNESS— confronted  by,  4;  19;  20;  process  for,  4;  treason,  5;  against 
self,  13;  competency  of  governed  by  U.  S.  law  only.  21;  22;  former 
conviction.   112;   wife,  248;    husband,  248;    corruption  or  intimida- 


980  Index. 

tion  of,  297;  811;  bribery  of,  308;  811;  fees  of,  must  not  trade  in, 
321;   799;  for  pauper,  see  pauper. 

WORKMAN— enticing  away,  378. 

WRITING,  handwriting,  145. 

WRIT  OF  ERROR,  119;  120;   125;   see  errors  and  assignment  of  error, 
143;  right  of  paupers  to,  655;   forms  for,  747. 


III1II^1VV,H1 

000  594  075    4 


University  of  California  Library 
Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


SEP  2  3 1999" 


11111 
ill 

III 

HlP 

11 


